Hardy v. Hardy

This is a motion to stay proceedings on appeal until defendants have complied with, or secured future compliance with, certain orders of the superior court, directing that there be paid sums allowed by the superior court to enable Marilyn Hardy to prosecute her cross-appeal herein and to enable her to resist the appeals of John C. and Eugene D. Hardy.

The orders were made in a divorce proceeding in which an interlocutory decree of divorce has been granted to Marilyn.

It appears that the only property which John owns consists of his beneficial interest in a spendthrift trust created by the will of his mother. Eugene D. Hardy was the husband of the testatrix, the father of John, and the grandfather of the minor. During a time when, although the testatrix had died, her will, which had been lost, was not being probated, and when, therefore, it appeared that John was an heir, he negotiated a property settlement with Marilyn pursuant to which he conveyed certain property coming to him as an heir of his mother. His mother’s will having been discovered and placed in probate, it appeared that the properties involved in the property settlement agreement were perhaps not his to transfer but belonged to the corpus of the spendthrift trust contained in his mother’s will. Both John and Eugene in this action sought the decree of the court that John’s assignments were void and they succeeded in obtaining a decree of the court to that effect. Marilyn has appealed from that portion of the decree so declaring. The trial court, however, declared a lien upon both the corpus and the income of the spendthrift trust for the payment of all sums ordered paid to Marilyn, and John and Eugene have both appealed.

After the appeals were taken, Marilyn applied to the trial court for an order allowing costs and counsel fees on appeal. Her prayer was granted. Neither John nor Eugene as trustee has paid anything under the order.

In Kopasz v. Kopasz, 34 Cal.2d 423 [ 210 P.2d 846 ], it was held proper to stay a husband’s appeal who had refused to pay moneys ordered paid to his wife pending appeal to enable her to defend. It is the position, however, of John that he has nothing wherewith to pay the sums ordered paid, and of Eugene that he, as trustee, is not liable to pay such sums from the trust estate. Whether or not in any ease such a stay should be granted must necessarily rest in the discretion of the appellate court and be determined in view of the circumstances of the particular ease. It appears to us