Smith v. Smith

On December 12, 1927, the trial court made and entered its order that the appellant pay to the respondent herein the sum of $500 as and for her attorney’s fees and actual costs not to exceed $100—the order being made to enable the respondent to properly present her cause on an appeal taken to this court by the appellant herein from an order theretofore made awarding the plaintiff and respondent alimony in a divorce proceeding theretofore tried in the superior court of Yuba County, between the parties hereto. The order awarding alimony, as herein stated, was made on the twenty-first day of October, 1927. The final decree in said cause was entered on the twenty-fourth day of October, 1927, in which was incorporated a provision requiring the payment of $175 per month for the support and maintenance of the respondent, the plaintiff in that action, until the further order of the court. The defendant and appellant herein having appealed therefrom, the court, upon application of the plaintiff and respondent herein, made and entered the order first above referred to.

The appellant’s contention upon this appeal is that the superior court was without jurisdiction to make the order awarding the plaintiff suit money upon this appeal, because of the provisions of the interlocutory decree in the main ease which required that each party pay his own counsel fees. It is then assumed that the interlocutory decree is res ad judicata upon the question of attorney’s fees; that it establishes the law relating to this proceeding, and therefore that the trial court possessed no jurisdiction to make any provision awarding counsel fees and costs to the respondent upon this proceeding. In making this contention appellant overlooks the fact that the power of the court in this proceeding is not controlled by the terms of

Precisely the same contention made in this case was ruled adversely to the appellant in the case of Whiting v. Whiting, 62 Cal. App. 157 [ 216 Pac. 92 ], In that case the interlocutory decree provided that the parties thereto should pay their own costs. Afterward, upon an appeal, the court awarded the respondent a certain sum for attorney’s fees and costs, and it was from this order that an appeal was taken and the contention made as is made here. We quote from the opinion: “Defendant strenuously insists that the order appealed from cannot be sustained and enumerates the following grounds why the same should be set aside: First, the court, at the conclusion of the trial of the action, having entered its decree that each party pay his own costs, and denying plaintiff’s application for attorneys’ fees and alimony, this decree was res ad judicata, and the court had no jurisdiction to grant a subsequent application for either alimony, costs, or attorneys’ fees.” The further objection was made that the plaintiff had means of her own, which is not involved in this action. In a somewhat extended opinion the court reviewed the cases having to do with the allowance of suit money, and held that the contention of the appellant was untenable. The eases of Bacigalupi v. Bacigalupi, 72 Cal. App. 654 [ 238 Pac. 93 ], and Howell v. Howell, 104 Cal. 45 [ 43 Am. St. Rep. 70 , 37 Pac. 770 ], related only to the power of the trial court to make an order allowing alimony under the provisions of section 139 of the Civil Code, and therefore have no bearing upon the

As no contention is made that the amount allowed is excessive, it follows that the allowance made by the trial court should be approved and the order is therefore affirmed.

Finch, P. J., and Hart, J., concurred.