dissenting. I must respectfully dissent to the award of a $2,000.00 attorney fee for reimbursement of appellee’s California attorney. The chancellor did indirectly what he couldn’t do directly — order damages paid under the guise of attorney fees.
Appellee relied upon Ark. Stat. Ann. § 34-1210 (Supp. 1979) to support his position that the reimbursement of his $2,000.00 attorney fee was proper. This statute provides:
During the pendency of an action for divorce or alimony, the court may allow to the wife or to the husband maintenance and a reasonable fee for her or his attorneys, and enforce the payment of the same by orders and executions and proceedings as in cases of contempt, and the court may allow either party additional attorney’s fees for the enforcement of payment of alimony, maintenance and support provided for in the decree.
This statute has been stretched tighter than any rubber band to provide attorney fees in an action for modification of custody as in Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S.W. 2d 586 (1956); in a contempt proceeding for enforcement of support as in Feazell v. Feazell, 225 Ark. 611, 284 S.W. 2d 117 (1955) and in an annulment proceeding as in Lee v. Lee, 191 Ark. 163, 83 S.W. 2d 840 (1935). This is in spite of the fact that the statute provides only that attorney fees may be allowed “during the pendency” of an action for divorce or alimony and for the enforcement of payment of alimony, maintenance and support as provided for in the decree.
In Farm Bureau Mutual Insurance Co. v. Kizziar, 1 Ark. App. 84, 613 S.W. 2d 401 (1981), this Court adopted the guidelines promulgated under the Code of Professional Responsibility of the American Bar Association which were adopted by the Arkansas Supreme Court. The factors to be used as guidelines in determining reasonableness of an attorney’s fee are to include the time and labor required, the novelty and difficulty of the questions involved; the skill requisite to perform the legal service properly; the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyer or lawyers performing the services; and whether the fee is fixed or contingent.
In the instant case, the appellant relied upon the advice of her California counsel to seek relief. The California court was the proper body to entertain a request for attorney fees incurred in an action before it, and the request for reimbursement of attorney fees should have been made at that time before the California court. The California court gave full faith and credit to the Arkansas decree and expressed a desire that the Arkansas court not hold appellant in contempt. The appellant relied upon our system of jurisprudence to pursue her course of action. She was unsuccessful and immediately turned the child over to the appellee upon the conclusion of the California action.
This is clearly an abuse of discretion and it is an example of our courts engaging in the legislative process. The term “costs” or “expenses” as used (even in a statute) is not understood ordinarily to include attorney’s fees. Lewallen v. Bethune, 267 Ark. 976, 593 S.W. 2d 64 (1980); 20 Am Jur. 2d Costs, § 72, p. 59. The right to recover attorney fees from one’s opponent in litigation as a part of the cost thereof does not exist at common law. Lewallen v. Bethune, supra; 20 Am. Jur. 2d Costs, § 72. Such an item of expense is not allowable in the absence of a statute or rule of the court, or some agreement expressly authorizing the taxing of attorney fees in addition to the ordinary costs. Lewallen v. Bethune, supra.
In C.R.T., Inc. v. Brown, 269 Ark. 114, 602 S.W. 2d 409 (1980) the Court said:
Since this was a civil contempt proceeding we find it entirely appropriate that the chancellor awarded attorneys’ fees and costs. The award of attorney’s fees in civil contempt action has been approved by the United States Supreme Court. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 87 S. Ct. 1404; 18 L. Ed. 2d 475 (1967).
In that case, the attorney fees were based on the number of hours appellee’s attorneys said they worked.
The facts in the instant case are distinguishable from those in C.R.T., Inc. v. Brown, supra. In that case the attorneys were Arkansas attorneys regularly practicing before the bar of the Court and they testified as to the amount of work that they did in behalf of their clients. In the instant case, the California attorney was never present before the Arkansas court and there was only a mere invoice showing that the appellee had paid a $2,000.00 fee. No evidence was taken as to the number of hours, skill, or any of the other guidelines adopted by our Supreme Court to determine the reasonableness of the California attorney fee.
Mayfield, C.J., and Cloninger, J., join in this dissent.