Price v. Price

QUINN, Associate Judge.

This appeal is the outgrowth of a suit for a limited divorce filed by appellee against her husband, appellant herein. Thereafter she requested that the case be dismissed. Contained in the motion to dismiss filed by her attorney was a request for an order requiring the husband to pay counsel fees. This attorney had represented appellee for several months, first, in trying unsuccessfully to effect a satisfactory separation agreement and, secondly, in filing suit. At the conclusion of the hearing of testimony on the motion the court awarded appellee’s attorney $2,500, less $250 which she had previously paid as a retainer. From this award the husband appeals.

Of the several contentions raised, the only one which requires discussion concerns the trial court’s alleged prejudgment of the issues and hostility toward appellant and his witness. The record shows that at the opening of the hearing the court endeavored to persuade counsel to agree on a fee. Appellant’s attorney informed the court that they were unable to come to terms. The judge then stated: “Now, if [appellant] wants me to fix it he will probably get stuck.” Noting that.appellant was present and had heard the colloquy, the court asked him, “Do you want to go outside and confer with the two attorneys about a fee, or do you want to sit there and get stuck?” Appellant replied that he considered his wife’s retainer sufficient and that he doubted whether her counsel had “earned even that much.” Following this declaration, the court said to appellant, “If you want me to fix it, you will get stuck because I believe in high fees and good ones.” As we view it, these remarks could have suggested but one thought to appellant and his counsel — either they settle then and there or accept the consequences. There would be no impartial hearing on the merits.

We believe enough of the proceedings has been recited to support appellant’s claim that he was denied a fair hearing. Like all litigants, appellant had a right to “be tried by a judge who is reasonably free from bias.” Silverman v. Silverman, D.C.Mun. App.1960, 162 A.2d 773, 774 . We hold the trial judge by his attitude and remarks created “an atmosphere of hostility * * * *84 which prevented] * * * the fair and impartial trial to which a litigant is entitled.” Home Insurance Company v. Eggleston, D.C.Mun.App.1961, 170 A.2d 781, 783-784 . On the basis of the record we have no alternative but to reverse.

The order awarding counsel fees is therefore vacated and the case remanded for a new hearing on the motion.

It is so ordered.