This action for a separation "a mensa et thoro" was heretofore before us twice, originally (174 So.2d 262 ), and on rehearing (174 So.2d 265 ), and before the Supreme Court (248 La. 621, 181 So.2d 47 ), pursuant to a writ of certiorari directed to this court (247 La. 1036, 175 So.2d 647 ). Pursuant to the decree of the Supreme Court, this cause was remanded to the trial court for the reception of certain new evidence and for a reconsideration of the issue of separation from bed and board in the light of that evidence. The basis for the decree for a remand is clearly set forth in the Supreme Court's opinion and need not be repeated here. It suffices to say that this court, on rehearing, considered certain evidence which was, at the time, not properly before the court on the trial of the merits of the case. With respect to that evidence the Supreme Court stated:
On the remand to the trial court the evidence referred to was made a part of the record and, on consideration of the record as then constituted, there was judgment in favor of plaintiff decreeing a separation from bed and board and awarding plaintiff the care, control, and custody of the two minor children. From the judgment thus rendered and signed, defendant appealed. Defendant was granted orders of appeal which concerned only the matter of the separation decree. By an answer to the appeal plaintiff has prayed for an award of an attorney's fee of $2,500 payable out of the property of the community estate formerly existing between plaintiff and defendant.
After analyzing the testimony, now properly included in the record, when this
(174 So.2d 262, 266, La.App., 2d Cir. 1964.) Our most recent review of the record as completed on the remand served only to convince us of the correctness of these conclusions.
Remaining for consideration is the question of the allowance to plaintiff of an attorney's fee for the institution and prosecution of this action for a separation "a mensa et thoro." The nature and extent of the work required of plaintiff's counsel, as reflected by the record and which may be gleaned from the observations heretofore made, warrant the award of a substantial fee. However, such an award may not, in our opinion, be made solely on a basis of a demand contained in answer to an appeal. Such an answer may not serve as a basis for a demand not otherwise placed at issue, nor serve to increase a demand properly made for a lesser amount. Reference to the pleadings reflects that plaintiff's demand for an attorney's fee was limited to the sum of $1,000.
No specific formula exists for the fixing of an attorney's fee in a case of this character; each case must rest upon its own facts. The factors which must be weighed in making such a determination are many. Considerations generally concern the degree of responsibility incurred, including the importance of the litigation and the nature and extent of the work performed, as well as legal knowledge, attainments, and skill of counsel. Henriques v. Vaccaro, 218 La. 1020, 51 So.2d 611 (1951); McGovern v. Gilbert, 127 So.2d 93, La.App., 4th Cir. 1961.
Where the court is familiar with the facts upon which the award of an attorney's fee may be made, it may make its own estimation of the value of the services rendered. Cain v. Employers Casualty Company, 236 La. 1085, 110 So.2d 108, 110 (1959); Hunt v. Hill, 138 La. 583, 70 So. 522 (1916); Succession of Franz, 133 So.2d 140, La.App., 4th Cir. 1961; Watkins v. Abshire, 108 So.2d 666, La.App., 1st Cir. 1959; Daigle v. Great American Indemnity Company, 70 So.2d 697, La.App., 1st Cir. 1954 (writ denied); Williams v. Ralph R. Miller Shows, 17 So.2d 67, La.App., 1st Cir. 1944 (amended 17 So.2d 389). While not necessarily controlling, expert opinion may be resorted to as a guide. Peiser v. Grand Isle, 224 La. 299, 69 So.2d 51 (1953); Peltier v. Thibodaux, 175 La. 1026, 144 So. 903 (1932).
While an attorney's fee of $1,000, the maximum claimed in plaintiff's petition, is not insubstantial, an award of that amount appears to be reasonable and ample under the facts of this case.
Therefore, for the reasons assigned, the judgment is amended by the allowance of an attorney's fee to plaintiff, Mrs. Jo Ann Joris Gallagher, in the sum of $1,000, which the defendant, James Albert Gallagher, is condemned to pay out of the property constituting the assets of the community of acquets and gains formerly existing between plaintiff and defendant; and, as thus amended, the judgment appealed is affirmed at defendant-appellant's costs.
Amended and affirmed.