Filed 2/27/18 Estate of Marshall CA1/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO


Estate of INEZ MARSHALL, Deceased.

DUANE M. LEONARD,
Petitioner and Respondent,
v.
EUGENE SCHNEIDER,
Claimant and Appellant;
GREGORY MARSHALL et al.,
Real Parties in Interest.


A150296

(Alameda County
Super. Ct. No. RP14744203)

Appellant Eugene Schneider, an attorney, filed a declaration in a probate matter seeking $11,200 in attorney fees pursuant to Probate Code section 10810. An objection was filed, asserting that “[a]ny statutory fees the attorney is entitled to are to be shared with Duane Leonard.” Following a hearing, the probate court awarded Schneider $7500. We affirm.
BACKGROUND
The case involves the estate of Inez Marshall, in connection with which a petition for probate and for issuance of letters testamentary was filed on October 10, 2014. Various other petitions followed, most of which are not in the record here. On December 23, 2014 Gregory Marshall was appointed executor. Various filings were made in 2015, one of which, on December 23, was a substitution of counsel, substituting Marshall in to represent himself, replacing Schneider.
Various hearings occurred in 2016, in one of which, on April 25 the court appointed Duane M. Leonard administrator with will annexed. Then, on August 9 Leonard filed a petition for settlement of first and final account and final distribution. That petition alleged in pertinent part: “Petitioner is informed that attorney Eugene Schneider, who had represented Gregory Marshall as the prior personal representative, will claim fees by a separate declaration.”
Schneider filed that declaration on September 13, 2016, asserting that “the estate accounted for is $410,000.00. The attorney fee pursuant to Probate Code section 10810 is $11,200.00.”
An objection to Schneider’s fee request was filed. It reads in its entirety as follows: “Carl T. Harris objects to the claim for statutory fees in the amount of $12,000 [sic] by Eugene Schneider. Any statutory fees the attorney is entitled to are to be shared with Duane Leonard. Further, Mr. Schneider’s client was removed as administrator by the court and he should not be entitled to a full share of statutory fees when neither he nor his client completed the probate administration.”
The matter came on for hearing on October 3. We do not know if that hearing was reported, but there is no transcript of it in the record here. Apparently the only one appearing at the hearing was Duane Leonard.
Following that hearing the probate court filed its order setting first and final account and final distribution, and for payment of statutory fees. As pertinent here the order provided as follows: “Eugene Schneider, attorney for Gregory Marshall, the prior personal representative, is allowed the sum of $7500.00 for statutory attorney fees and the sum of $1262.00 as reimbursement of costs advances to the estate.”
DISCUSSION
Schneider’s position on appeal is straightforward. As his first argument puts it, the “Trial Court Does Not Have Discretion to Reduce the Statutory Attorney’s Fee for Ordinary Services Provided in a Probate Below The Requirement of Probate Code Section 10810.” Or, as he later argues: “the Use of ‘Shall’ in Section 10810 Is Mandatory, Not Directory.” We reject the argument.
While “shall” in Probate Code section 10810 may indeed be mandatory, that section begins with this paragraph: “(a) Subject to the provisions of this part, for ordinary services the attorney for the personal representative shall receive compensation based on the value of the estate . . . .”
In “this part” is Probate Code section 10814, which provides in its entirety as follows: “If there are two or more attorneys for the personal representative, the attorney’s compensation shall be apportioned among the attorneys by the court according to the services actually rendered by each attorney or as agreed to by the attorneys.”
As indicated above, Schneider substituted out in December 2015. As also indicated above, the objection to Schneider’s fee request said: “Any statutory fees the attorney is entitled to are to be shared with Duane Leonard. Further, Mr. Schneider’s client was removed as administrator by the court and he should not be entitled to a full share of statutory fees when neither he nor his client completed the probate administration.”
We have no idea what occurred at the hearing, and absent any transcript we “ ‘will have no way of knowing . . . what grounds were advanced, what arguments were made and what facts may have been admitted, mutually assumed or judicially noticed at the hearing. In such a case, no abuse of discretion can be found except on the basis of speculation.’ ” (Snell v. Superior Court (1984) 158 Cal.App.3d 44, 49, italics omitted; see also GT, Inc. v. Superior Court (1984) 151 Cal.App.3d 748, 756.)
Beyond that Schneider is confronted by the well-settled principles of appellate review, the most fundamental of which is that “ ‘[a] judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.’ ” (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; accord, e.g., Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)

Schneider has shown no error.
DISPOSITION
The order is affirmed.



_________________________
Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Miller, J.