Newlands v. Superior Court

This is an original petition for mandate to compel the superior court of Los Angeles County and the Honorable Charles Monroe, judge thereof, to grant the petitioner alimony pendente lite, attorneys’ fees and costs, grow

By his answer respondent shows that petitioner, Viola New-lands, brought her action against her husband, Joseph R. Newlands, on the twenty-fourth day of August, 1914. She charged that the defendant abandoned her in the city of New Orleans on the third day of April, 1911, and ever since has without cause failed to provide for her. . She also charged him with the infliction of extreme cruelty upon her. The defendant answered and likewise filed a cross-complaint, in which he sought a divorce from plaintiff upon the twofold grounds of her desertion and her cruelty. Pending the trial of this action plaintiff, under order not made by respondent, was in receipt of alimony pendente lite. The trial had before respondent resulted in his finding, upon ample legal evidence, that defendant had not deserted plaintiff and had not treated her with cruelty, had not applied to her violent and offensive names, and had never struck or beaten her; that defendant was not, as charged, at the time he contracted marriage .afflicted with a loathsome venereal disease; that plaintiff upon the trial introduced evidence to show that she was and had been suffering from a venereal disease called gonorrhea, but neither this nor any other disease had been communicated to plaintiff by defendant; that during their married life together defendant provided for plaintiff according to his circumstances; that they were married in the city of New Orleans in 1909 and came to California in 1910; that on the third day of April, 1911, plaintiff, against the protest of her husband, insisted upon returning to New Orleans, and did return, deserting and abandoning her husband and her child about one year of age; that defendant protested against this desertion and abandonment of himself and their child, and that plaintiff with profanity declared her intention of returning to New Orleans, and demanded money of defendant to enable her to do so, threatening to commit suicide and to kill herself and child if the money was not forthcoming. Defendant’s pleadings were unavailing, and on April 3, 1911, plaintiff took the train and went to New Orleans, where she remained until about the 4th of August, 1914. During the first year of her absence plaintiff wrote several letters to her husband asking him to send her money to enable her to return. The court found that defendant did not send her money

It must be conceded and indeed is not questioned but that a discretion is vested in the trial court in the matter here under consideration (Civ. Code, sec. 137), and that only a plain abuse of discretion is subject to correction at our hands. (Smith v. Smith, 147 Cal. 143 , [ 81 Pac. 411 ]; Gay v. Gay, 146 Cal. 240 , [ 79 Pac. 885 ].) Nor does it require the citation of authority to the proposition that even where discretion is vested, if that discretion under the facts can be legally exercised in but one way, mandate will lie to compel the inferior tribunal so to exercise it.

The simple question left for consideration, therefore, is one of fact. Can it be said that under respondent’s showing of fact, the position which he has taken evinces a plain abuse of discretion? He was the judge who tried the cause. Before him appeared all of the witnesses and he heard all of the evidence. It was his right to take into consideration all of these matters in exercising his discretion in the decision of the motion subsequently made before him. (Harron v. Harron, 128 Cal. 305 , [ 60 Pac. 932 ]; Gay v. Gay, 146 Cal. 238 , [ 79 Pac. 885 ].) His conclusion upon the main case that plaintiff’s action for separate maintenance was without merit and that defendant was entitled to a divorce, necessarily contained in it his conviction that the husband was no longer legally or equitably charged with the support of the wife. The affidavits of the wife filed in support of her motion that the venereal disease from which she suffered had impaired her health and rendered her incapable of performing manual labor as a domestic, which, it is said, was the only kind of labor at which she could support herself, would, if petitioner were destitute, make her an object of charity, but did not impose upon the divorced husband the duty of maintenance. The second phase of the matter, namely, the costs upon ap

The objection that an allowance of such attorneys’ fees cannot be made after the services have actually been rendered, which objection is based upon the declarations in Mudd v. Mudd, 98 Cal. 320 , 322, [ 33 Pac. 114 ]; Loveren v. Loveren, 100 Cal. 493 , [ 35 Pac. 87 ], and Lacey v. Lacey, 108 Cal. 45 , [ 40 Pac. 1056 ], is entirely obviated by force of the circumstance that in this case the husband did not object, but stipulated in writing his consent that this might be done. As the husband is the only person whose rights could be injuriously affected by such an order, his consent thereto removes an}7 possible difficulty in the way of its legality and enforcement. And, finally, it may here be said that the same showing which we hold is sufficient to sustain the court’s order refusing alimony pendente lite will equally sustain its order refusing any attorneys’ fees whatsoever. Therefore it is unnecessary that mandate should issue. A suggestion to the trial court that it proceed to do what it has declared its' willingness to do is sufficient in the premises.

Mandate is denied and the writ discharged.

Shaw, J., Sloss, J., Melvin, J., Lawlor, J., and Angellotti, C. J., concurred.