## Facts

- Wife sued husband for divorce; husband stipulated his fault caused the divorce.
- After a bench trial, the court granted the divorce, divided community property, and awarded attorney’s fees.
- Wife first retained Solomon Casseb, Jr.; the divorce petition requested attorney’s fees and judgment in favor of her attorney.
- Casseb withdrew; wife retained Pat Maloney, Sr. and Associates, including Jack Pasqual.
- The decree awarded $5,000 in attorney’s fees to Casseb (stipulated reasonable by husband) and $46,000 to Maloney/Pasqual.
- The decree also awarded husband’s membership in the San Antonio Country Club (a voluntary association/nonprofit with board-controlled membership) to wife.
- Husband appealed, challenging (1) pleading and evidentiary support for the fee awards and (2) the award of the club membership to wife.

## Issues

1. Whether the trial court erred in awarding attorney’s fees where husband claimed the pleadings were insufficient and the evidence did not support the amount awarded, particularly to successor counsel.
2. Whether a country club membership held in one spouse’s name, subject to the club’s internal rules and board discretion, can be awarded to the other spouse as divisible community property.

## Decision

- The court of appeals affirmed the attorney’s fee awards.
- The court held any pleading defect as to attorney’s fees was waived because husband did not specially except and did not object to the fee evidence.
- The court found legally sufficient proof of the necessity of employing counsel and the reasonableness of the fees; husband’s stipulation supported the $5,000 award to prior counsel.
- The court set aside or modified the portion of the decree awarding the country club membership to wife.
- Overall, the judgment was affirmed in part and reversed/modified in part.

## Legal Principles

- In divorce, attorney’s fees may be awarded as part of the “just and right” division of the marital estate.
- The party seeking attorney’s fees must prove the necessity of employing counsel and the reasonableness of the fee.
- Attorney’s fees in divorce may be recovered in the spouse’s name or directly in the attorneys’ names.
- A complaint that pleadings insufficiently support attorney’s fees is waived absent a timely special exception.
- A divorce court cannot transfer to a spouse a nonassignable membership in a voluntary association where the association’s governing body retains exclusive authority over admission and termination; such an interest functions as a personal privilege rather than a freely transferable property right.

## Conclusion

The appellate court upheld substantial divorce-related attorney’s fees as properly pleaded (or any defect waived) and supported by evidence, but rejected the attempted transfer of a country club membership whose nonassignable, board-controlled character placed it beyond direct judicial reallocation in the property division.


Cluck v. Cluck, 647 S.W.2d 338 (Tex. App.—San Antonio 1982)