In re Marriage of Read (2002)

In re the Marriage of LINDSEY D. and RANDOLPH C. READ.

LINDSEY D. READ, Respondent, v. RANDOLPH C. READ, Appellant; FREID AND GOLDSMAN, Respondent.

[Modification fn. * of opinion (97 Cal.App.4th 476) on denial of petition for rehearing.]

THE COURT fn. † -

It is ordered that the opinion filed on April 4, 2002, be modified in the following particulars:

1. On page 2, the second sentence of the second full paragraph [97 Cal. App. 4th 477, advance report, 2d par., line 2] is modified to read:

Lindsey filed for legal separation on November 13, 2000, with a request for legal fees.

2. On page 2, the third sentence of the second full paragraph [97 Cal. App. 4th 477, advance report, 2d par., line 2] is modified to read:

On February 1, 2001, Lindsey's then attorney, Laura Wasser of Wasser, Cooperman & Carter, filed a motion for fees and costs pursuant to In re Marriage of Borson (1974) 37 Cal. App. 3d 632.

3. At the end of the first full paragraph on page 7 [97 Cal. App. 4th 481, advance report, 2d par.], add as footnote 2 the following footnote:

2. In a petition for rehearing, Freid and Goldsman cite our opinion in In re Marriage of Kelso (1998) 67 Cal. App. 4th 374, stating that we ordered a new hearing on a Borson fee motion by the wife's former attorney despite the wife's opposition. In Kelso, the issue was the effect of findings by a commissioner on the Borson motion despite the fact that the commissioner had disqualified himself from the fee issue. We reversed the trial court's denial of a motion for a new hearing on fees, holding that the [97 Cal. App. 4th 1269g] trial court should not have relied on the commissioner's findings. We remanded for a new hearing before a new judge for a de novo determination of the issue of fees. (Id. at p. 377.) In a footnote, we observed: "Appellant's [the former attorney for wife] 'standing' to pursue this appeal may be upheld by adhering to the theory of Borson itself, that appellant is acting 'on behalf' of Wife. (Compare Borson, supra, 37 Cal.App.3d at pp. 636, 638, and Schwartz v. Schwartz (1959) 173 Cal. App. 2d 455, 458 [343 P.2d 299], with In re Marriage of Tushinsky (1988) 203 Cal. App. 3d 136 [249 Cal. Rptr. 611].)" (Kelso, supra, 67 Cal.App.4th at p. 383.) The issue in Kelso was not the propriety of proceeding with the Borson motion over the wife's opposition.

There is no change in the judgment.

Freid and Goldsman's petition for rehearing is denied.

FN *. This modification requires the movement of text affecting pages 481-482 of the bound volume report.

FN †. Before Epstein, Acting P. J., Hastings, J., and Curry, J.