Rosenthal v. Rosenthal

Three appeals are presented concurrently in this divorce action. Since March 1959, the parties have engaged in spirited litigation which, so far as the record discloses and as was conceded upon oral argument, has not yet eventuated in an interlocutory judgment. Appeal No. 25115 challenges an allowance of additional attorney fees of $17,000 and $587.95 costs made on March 21, 1960. No. 25340 is an appeal from an order of September 12, 1960, modifying a former order of June 5, 1959, to require payment by defendant to plaintiff of additional support money in the sum of $75 a week. No. 24688 assails an order of October 30,1959, directing a trustee to pay certain sums of money out of a sum of $1,200 previously deposited with him in trust pursuant to stipulation. There have been three previous appeals by defendant from orders made in this cause, two applications in the District Court of Appeal for prohibition and one for mandamus, all of which special writs were denied.

We preface our discussion of these appeals with a quotation of Mr. Justice Vallée’s remarks in Overton v. Vita-Food Corp., 94 Cal.App.2d 367 , 370 [ 210 P.2d 757 ] : “With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom. No one seems to listen.’’

Most of appellant’s arguments upon this appeal may be disposed of by reference to the foregoing quotation and the fact that they invite a reevaluation of the evidence by a court of review. We reiterate certain principles that we stated in Davis v. Lucas, 180 Cal.App.2d 407 , 409 [ 4 Cal.Rptr. 479 ] : “The appellate court starts with the presumption that the evidence sustains each finding of fact [citations], and the burden rests upon appellant ‘to demonstrate that there is no substantial evidence to support the challenged findings.’ [Citations.] To this end appellant must set forth in his brief all material evidence upon the point, not merely his own proofs [citations]; if this is not done the point is deemed waived. ... ‘ [A] claim of insufficiency of the evidence to justify findings, consisting of mere assertion without a fair statement of the evidence, is entitled to no consideration, when it is apparent, as it is here, that a substantial amount of evidence was received on behalf of the respondents.’ [Citation.] In the circumstances we are entitled to accept the statements of respondent’s brief as to the evidence upon the subject. . . . We do not make an independent search of the record to uncover error. ’ ’

On June 5, 1959, an order was made directing defendant to pay to plaintiff $75 a week for her support, also the sum of $3,500 “on account as attorney’s fees.” On August 31, 1959, plaintiff gave notice of motion to be made on September 4, 1959, for an order “granting Plaintiff further and additional attorney’s fees on account.” The stated grounds were “that defendant Jerome B. Rosenthal has by his harrassment, delay and efforts to thwart the process of this Court caused an undue and uncontemplated amount of effort and work upon the part of Plaintiff and her attorneys, and upon the further grounds that this Court ordered and directed Defendant to pay the reasonable cost of any necessary audit required by Plaintiff, and that Defendant has failed and refused Plaintiff access to the books, files and records of the community herein and of Jerome B. Rosenthal, individually and has prevented Plaintiff from proceeding with her audit as directed by this Court.” The motion was to be based on the notice, the pleadings, records and files, the declaration of Horace A. Ruderman (one of plaintiff’s attorneys) and oral and documentary evidence to be presented upon the hearing. The Ruderman declaration set forth with some particularity ‘ ‘ extraordinary and uncontemplated proceedings and efforts . . . necessitated by

I. Appellant’s first point is that the court erred in receiving evidence of services rendered by plaintiff’s attorneys after the date of the notice of motion, and in refusing to strike the same. As the motion sought merely an additional allowance on account, we see no error in the court’s ruling. Section 137.3, Civil Code, provides: “Attorney’s fees and costs within the provisions of this section may be awarded for legal services rendered or costs of action incurred prior, as well as subsequent, to any application or order of court therefor, including services rendered or costs incurred prior to the filing of the complaint.” It covers past and future services and authorizes allowance of such amount “as may be reasonably necessary for the cost of maintaining ... the action and for attorney’s fees.’’

True, the motion must be upon notice which fairly advises the opponent of what he will have to meet. This notice did do that. If defective, we would not be disposed to reverse for the hearing consumed 16 court days and there is no showing of prejudice suffered by defendant from any alleged insufficiency of the notice. Pertinent here is the following passage from Foster v. Foster, 147 Cal.App.2d 338 , 342 [ 305 P.2d 152 ], which quotes Rose v. Rose, 109 Cal. 544 , 546 [ 42 P. 452 ] : “ ‘In taking the evidence for the purpose of fixing the amount of the allowance, the court is not trying an issue in the case, but is seeking for information as the basis of its order, and is not bound by the technical rules of evidence applicable to controversies between contesting litigants.’ And at pages 545-546, the court said: ‘ The court cannot know at the commencement of the action the amount of labor that will be required, or the value of the services to be performed in the prosecution or defense of the action on behalf of the wife, and there is no rule of procedure which requires it to fix the entire amount of counsel fees at the beginning of the action, or to prevent it from making allowances from time to time as the exigencies of the case shall seem to demand. ’ ” To same effect,

Having endeavored to limit plaintiff’s evidence to August 31, 1959 (date of notice of motion) as the latest cut off, appellant then turns to the original order of June 5, 1959, as the earliest limit, thus confining plaintiff’s proofs to the brief period of less than three months intervening between June 5 and August 31. Espousal of June 5 as the earliest limit rests upon an assumed pertinence of the doctrine of res judicata.

No Res Judicata

Appellant’s claim of res judicata is misplaced. An order made on a motion is not res judicata in the same sense as a judgment; it is conclusive only upon matters specifically passed upon, not those which might have been presented but were not. Cooper v. Miller, 165 Cal. 31 , 35 [ 130 P. 1048 ] : ‘‘That a decision of a court upon an order such as this may, in proper eases, be pleaded as res adjuclicata is unquestioned. (Lake v. Bonynge, 161 Cal. 120 [ 118 P. 535 ].) But it is res adjudicata only upon the matters adjudicated under the motion. ...” Accord: Bannon v. Bannon, 270 N.Y. 484 [ 1 N.E.2d 975 , 977, 979, 105 A.L.R. 1401 ] ; Jason v. Abramowitz, 75 N.Y.S.2d 781 , 783; Baranowitz v. Baranowitz, 13 Misc.2d 404 [ 176 N.Y.S.2d 856 , 860] ; Hill v. United States, 298 U. S. 460 , 466 [ 56 S.Ct. 760 , 80 L.Ed. 1283 ] ; 60 C.J.S. § 65, pp. 81-82. See also Becker v. Pine, 193 Misc. 108 [ 83 N.Y.S.2d 749 ].

In the instant case the allowance for attorney fees was expressly made “on account.” That phrasing effects an implied reservation for later determination of the question whether a larger sum should be awarded. (Hellman v. Hellman, 108 Cal.App.2d 588 , 594 [ 239 P.2d 458 ]; Huntington v. Huntington, 120 Cal.App.2d 705 , 712 [ 262 P.2d 104 ]; Griffin v. Griffin, 122 Cal.App.2d 92 , 100-101 [ 264 P.2d 167 ].) In the Huntington ease this court said, at page 713 : “The phrase ‘on account’ could have no other reasonable meaning than that the allowance of $6,000 would be supplemented if the services actually rendered should justify a further award.” Clearly “on account” leaves no room for application of the doctrine of res judicata. Any other conclusion would be directly in the teeth of section 137.3, Civil Code, which expressly authorizes the court from time to time before entry of judgment to “augment or modify the original award.”

Cases cited by appellant, such as Ojena v. Ojena, 154 Cal.App.2d 440 [ 316 P.2d 414 ], Barker v. Barker, 139 Cal.App.2d

II. Appellant argues next that “the trial court abused its discretion by ordering defendant to pay additional attorneys’ fees and costs where the evidence clearly established defendant’s inability to pay additional attorneys’ fees.” The burden of the argument is that the evidence clearly showed that the husband had “a cash deficiency, i.e., payment of Defendant’s total necessary obligations and commitments or required cash expenditures had exceeded and was continuing to exceed Defendant’s cash receipts, and hence he was unable to pay additional attorneys’ fees.” Secondly he says that “ [t]he Court’s unintelligent remarks, interruptions and consideration of this evidence suggests that the Court failed to understand general accounting principles and/or the general testimony and evidence offered by Defendant relating to Defendant’s financial information and tax problems, or that the Court arbitrarily ignored this evidence.”

Plainly, a past or present cash deficit does not control the question of ability to pay. (See Peyre v. Peyre, 79 Cal. 336 , 340 [ 21 P. 838 ] ; Webber v. Webber, 33 Cal.2d 153 , 160 [ 199 P.2d 934 ] ; Pencovic v. Pencovic, 45 Cal.2d 97 , 102-103 [ 287 P.2d 501 ] ; McGann v. McGann, 82 Cal.App.2d 382 , 388-389 [ 186 P.2d 424 ].) Appellant had a law practice of some $90,000 net per year, fractional interests in 25 oil wells, at least four of which were on production at time of hearing; also other assets.

Concerning the evidence which appellant says the court did not understand, he refers to summaries of his book accounts, his tax liability, contingent tax liability, “financial net worth” as shown by his own books of account, “book value of all assets, ’ ’ and complains that the court did not understand the evidence but “relied only on a very limited and incomplete portion of the evidence.” At most, this presents a field for review of the evidence and its fair inferences, a function a reviewing court does not perform. The court said, in deciding the matter: “Without reviewing all of the evidence submitted to the Court, without intending to even review any great portion of it, the Court will refer only to that portion of it

Wiley v. Wiley, 183 Cal.App.2d 588 , 591 [ 7 Cal.Rptr. 73 ] : “There is, of course, no rule of law which limits the amount the court may award for a wife’s support and expenses of suit to a share of the income of the husband, regardless of his financial worth.” In Howard v. Howard, 141 Cal.App.2d 233 , 238 [ 296 P.2d 592 ], we said: “The judge’s experience and knowledge afford sufficient basis for fixing the amount of the lawyer’s fee even in the absence of specific evidence on the subject. (Jones v. Jones, 135 Cal.App.2d 52 , 64 [ 286 P.2d 908 ] ; Lewis & Queen v. S. Edmondson & Sons, 113 Cal.App.2d 705 , 708 [ 248 P.2d 973 ]; Libby v. Kipp, 87 Cal.App. 538 , 544 [ 262 P. 68 ].) In the last cited case it is said: ‘It is perhaps difficult to conceive of any record that could be presented to the appellate court which would give less light upon the subject to be determined than a transcript relating to the fees or compensation that should be awarded for professional services, for the simple reason that only a few pages of testimony or a few simple statements contained in the record may be necessary to state the proceedings taken and had so far as the court records are concerned, whereas the time required to ascertain and determine the proceedings that should be taken or the skill required to determine the proper proceedings to be taken are the real elements which enter into the value of the services for which compensation is properly awarded, cannot be placed upon, and never do appear on a typewritten or

III. Next appellant argues that the instant award would compensate plaintiff’s attorneys for services that were unnecessary, nonlegal and unskillful; that the time expended by plaintiff’s counsel, 365% hours through February 1960, was excessive and an hourly rate of $50 likewise exorbitant; that, the court relied on this testimony and inferentially that its award was made upon this basis; but the court did not allow $50 an hour and this contention presents another fact issue which we do not review.

In this connection appellant also argues that plaintiff’s counsel indicated he was not relying on a court award requiring the husband to pay his fee and hence there was no showing of necessity of making an award for attorney fees. No authority is cited in support of this argument which harks back to the rule existing prior to the amendment of section 137.3, Civil Code, in 1953, providing for the awarding of costs and attorney fees for services or costs incurred prior to any application therefor. (See 16 Cal.Jur.2d § 193, p. 483; 1 Armstrong, California Family Law, 1961 Cumulative Supplement, p. 87.) Armstrong, referring to pages of the text, says: “Beginning with the case of Lacey v. Lacey (p. 313) all the material up to the excerpt of Gay v. Gay (p. 317) should be discarded as of no current importance. The revision of CC § 137.3 in 1953 included the provision that: ‘Attorney’s fees and costs within the provisions of this section may be awarded for legal services rendered or costs of action incurred prior to, as well as subsequent, to any application or order of court therefor, including services rendered or costs incurred prior to the filing of the complaint. ’ This change alters the rules worked out by the cases and disposes of the whole problem discussed therein. The statute now spells out the controlling principles.”

IV. Appellant asserts abuse of discretion by the court in finding that plaintiff and her attorneys acted in good faith, ‘ ‘ where the evidence clearly and overwhelmingly shows that a great portion of the legal services had been motivated by bad faith on the part of both plaintiff and her counsel,” This

“So the Court makes a finding that there was no evidence whatsoever of bad faith on the part of either the plaintiff, Mrs. Rosenthal, since she is likewise accused of being a conspirator with her counsel, nor is there any evidence of any bad faith whatsoever on the part of Mr. Crowley or Mr. Ruderman in representing Mrs. Rosenthal in connection with any of these extended hearings and proceedings.”

V. Prejudicial error in excluding competent and relevant evidence is alleged. The first specification is exclusion of evidence of declarations of Mrs. Rosenthal to the effect that she was not interested in conserving the funds of the community and did not care if they were wasted, and that she wanted court litigation to hurt defendant all she could. This is said to have occurred in March 1959, about the time of filing the action. It could not be impeachment testimony for no foundation was laid. Plaintiff’s motive in bringing or prosecuting the action is immaterial. If she has a good cause of action any malice in prosecuting it cannot subtract from the merits. If she does not have one the event will prove the fact. Her motives in commencing the suit are immaterial to the question of what allowances she should have during its pendency in order to establish her claims (see 1 Cal.Jur.2d § 12, p. 591) where advanced in apparent good faith. The fees now in question were

Exclusion of Mr. Crowley’s checkbook stubs was not erroneous, for they could bear only on his professional earnings and were excluded in the exercise of a sound discretion through limiting the evidence in an unduly protracted hearing.

Proffered testimony of defendant and Mrs. Pavis as to work performed for defendant in and about this litigation could at best reflect upon his own good faith, and that was not in issue. In so far as such evidence would tend to support a claim that plaintiff’s attorneys forced defendant to do an unwarranted amount of labor in his defense, it was cumulative and properly excluded as such.

VI. Appellant further says: “The judicial bias, hostility and prejudgment demonstrated by the trial court prevented defendant from having a fair trial and constituted an abuse of discretion and reversible error.” This argument invites us to judge between appellant and the trial judge as to who was responsible for delay in the hearing, and whether there was abuse of discretion in setting a time for the end of the hearing and in enforcing that limitation. As heretofore indicated, it consumed 16 court days; appellant, though other lawyers were associated with him, conducted practically all the proceedings. On March 17th the court said: “ . In the opinion of the Court, this Court has given the defendant ample opportunity of presenting his evidence in opposition to the motion of the plaintiff for additional and supplemental attorneys ’ fees. Actually, in the opinion of the Court, there has been an unconscionable length of time that has elapsed since the institution of these proceedings by way of an order to show cause in re attorneys’ fees. In effect, this is merely a short cause matter, it is not a trial on the merits. The Court, therefore, is advising the defendant and his counsel that the Court will allow the defendant a maximum of two and a half additional days, in other words, this hearing must be and will be concluded no later than 4:00 p. m. on Friday of this week, March 19th.” The reference to two and a half days was corrected to one and a half days, and the court continued: ‘ ‘ One and a half days, then. I thought today was Wednesday. Until Friday, and that will include likewise any and all oral argument. If counsel

Long hearings, with many meticulous and reiterated objections and motions phrased in language lacking in normal respect for the court, are calculated to develop an unhappy atmosphere which, however, does not necessarily connote hostility or prejudgment on the part of the judge. He has the duty of expediting the hearing, sorting wheat from chaff, the prerogative of excluding unnecessary cumulative evidence, and the obligation generally to see that time is not wasted. Respondent’s counsel well say in their brief: “A Court need not be ground to a complete standstill by the unnecessary repetitions and de minimis protractions of a clever litigant.” As said in Estate of Dupont, 60 Cal.App.2d 276 , 290 [ 140 P.2d 866 ] : “It apparently.cannot be repeated too often for the guidance of a part of the legal profession that a judge is not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts between the parties who have sought the protection of our courts. Within reasonable limits, it is not only the right but the duty of a trial judge to clearly bring out the

Gantner v. Gantner, 39 Cal.2d 272 , 278 [ 246 P.2d 923 ] : “The other charges of prejudice involve only adverse rulings or attempts by the trial judge to direct the course of the trial. There is no evidence of misconduct. A trial judge is not a mere passive spectator at the trial.” See also Kurtz v. Kurtz, 189 Cal.App.2d 320 , 327 [ 11 Cal.Rptr. 230 ] ; Bolander v. Thompson, 57 Cal.App.2d 444 , 449 [ 134 P.2d 924 ] ; Seidenberg v. George, 76 Cal.App.2d 306 , 309 [ 172 P.2d 891 ], We cannot uphold this contention of appellant.

Other arguments advanced by appellant warrant no further or separate discussion.

The order involved in appeal No. 25115 must be affirmed.

Appeal No. 25340.

Appeal from order of September 12, 1960, modifying order of June 5, 1959 (as corrected by mine pro tunc orders of December 15, 1959 and December 30, 1959), which requires defendant to pay for plaintiff’s support and maintenance $75 per week in addition to amounts previously ordered. This spells a total of approximately $600 a month plus occupancy of the home and some lesser items.

Appellant’s arguments revolve around the claim of res judicata, which plea is controlled by the authorities cited under the heading “No Res Judicata” in section I of this opinion dealing with appeal No. 25115.

The original support order of June 5,1959 (for some reason) was not appealed. It provides for payment to plaintiff of $75 per week commencing June 10, 1959, and “continuing until further order of Court.” The quoted phrase is the equivalent of the words “on account” used in the attorney fee order considered supra in section I of this opinion. It implies a reservation of jurisdiction to modify prospectively at any future time and seems to bring the situation within Earth v. Ten Eyck, 16 Cal.2d 829 , 833-834 [ 108 P.2d 675 ], wherein the court, affirming an order vacating an order dismissing the action, said: “When the motion to vacate was before the court on the conflicting affidavits already on file, the court’s power then to weigh the conflicts was the same as upon first consideration thereof. In other words, the power of the court to

Larsen v. Larsen, 101 Cal.App.2d 862 , 865 [ 226 P.2d 650 ] : “In Gay v. Gay, 146 Cal. 237 , 242-243 [ 79 P. 885 ], it is expressly recognized that, as part of temporary alimony, a payment of a lump sum for past expenses may be allowed when such is necessary to enable the wife to further prosecute her case and to support herself upon the amount to be paid to her periodically in the future. (See also Reed v. Reed, 40 Cal.App. 102 , 106-107 [ 180 P. 43 ].) ” At page 867: “The major part of the amount ordered to be reimbursed relates to indebtedness for necessaries incurred between the separation of the parties and the beginning of the monthly alimony payments on December 23, 1948. We cannot say that the superior court abused its discretion when in accordance with Gay v. Gay, supra, it ordered defendant to repay the amount of such indebtedness. By not appealing from the original temporary alimony order defendant conceded that plaintiff needed his support.” At page 868: “Appellant argues that he cannot be taxed for such expenditures made subsequent to the order for alimony pendente lite and that his liability was limited to the monthly payments ordered until that award was properly modified by the court. It is our opinion that the order to pay said amounts constitutes such modification of the alimony by the court and was properly within the court’s discretion. The necessity of incurring the indebtedness caused by defendant’s behavior constituted new circumstances which in the court’s discretion might justify an increase in award. (Miller v. Miller, 57 Cal.App.2d 354 , 360 [ 134 P.2d 292 ].) .. . The principle of the Gay and Reed cases, supra, that alimony may be granted retroactively and/or partly in lump sum when such is necessary to prevent old indebtedness from hampering the ability of the wife to live on future monthly alimony payments, we consider also applicable to increase in alimony. With respect to the necessity in this case the same applies to the payments for

Appellant's arguments are reiterations of these two propositions stated in the opening brief: “The rule is clear that a prior final order re support is res judicata as to all matters that could have been or which were litigated in the hearing resulting in that order”; “Further, it is not necessary that Plaintiff have actually litigated her support needs, but merely that she had had the opportunity to present her support needs in order to invoice the rules of res judicata.” Herein lies a misconception of the application of the doctrine of res judicata to orders made upon motion. As stated in Cooper v. Miller, supra, 165 Cal. 31 , 35, such an order is “res adjudicata only upon the matters adjudicated under the motion.” Numerous other cases are cited in section I, supra, to the same effect.

Proceeding from this faulty premise appellant argues that it was error to receive or consider evidence of facts antedating an order of June 1,1960, which, as he says, granted additional attorney and accountant’s fees but no additional alimony. Again he postulates that " [a]ll of these facts alleged as constituting a change of circumstances by Plaintiff were in existence considerably earlier and prior to the May, 1960 hearing, resulting in the June 1, 1960 Order, and could have been fully litigated in earlier hearings resulting in final Orders, and such evidence should therefore have been barred in the instant hearing under principles of res judicata.” This position is unsound for the reason, among others, that a judgment or an order never operates as res judicata of an issue which the court clearly did not determine. Respondent’s brief says: "The motion re temporary alimony pending appeal was not ruled upon; the June 1, 1960 Order does not dispose thereof; same was removed by Stipulation.” This stipulation does not appear in the record but appellant has not filed a reply brief and we therefore are justified in accepting this statement as correct. (H. Moffat Co. v. Rosasco, 119 Cal.App.2d 432 , 443-444 [ 260 P.2d 126 ] ; Ribero v. Callaway, 87 Cal.App.2d 135 , 137 [ 196 P.2d 109 ] ; Willson v. Security-First Nat. Bank, 21 Cal.2d 705 , 712 [ 134 P.2d 800 ].) In any event respondent’s assertion emphasizes appellant’s position that the order of June 1, 1960, did not rule upon respondent’s request for additional allowance.

The factual situation disclosed by the record, viewed in the light most favorable to respondent, is as follows: On June 5, 1959, the order for $75 support money per week was

On August 14, 1959, defendant had initiated a motion to modify the order of June 5, 1959. Heard in February, 1960, the court on the 26th further modified the order of June 5, 1959, as follows: “Commencing with the next payment due in March 1960, defendant is ordered to pay $450.00 per month on the payment on the family home, and plaintiff is ordered to pay $50.00 per month on payment on family home in any month that she receives $100.00 or more from her niece or any other person for occupancy of the guest house or in the family home. ... In any month that plaintiff does not receive $100.00 or more for said occupancy, defendant is ordered to pay the full payment of $500.00 on the family home. ...”

On April 25, 1960, plaintiff gave notice of two motions, one of which eventuated in the order of June 1, 1960, upon which appellant bases his argument of res judicata. By this motion plaintiff sought additional attorney fees and costs in connection with defendant’s appeal from Judge Brandler’s order of March 21, 1960 (appeal No. 25115); also payment of accounting fees and appointment of a receiver. In the other motion plaintiff sought further temporary alimony in order to meet necessary utility charges pending appeal from order of December 30, 1959 (the second nunc pro tunc order above mentioned). The record does not show that these two motions were heard together and counsel for respondent say in their brief that the motion for further alimony “was disposed of by stipulation between the parties.” Appellant having filed no reply brief, we accept this statement as correct. The order of

These authorities throw appellant back to the order of June 5, 1959, as the basis for his contention of res judicata (assuming arguendo that it is applicable to an interim support order) and they dispose of most of those contentions, predicated as they are upon the effect of the order of June 1, 1960.

The many cases which appellant cites to the effect that a showing of change of circumstances is a prerequisite to modification of a temporary award of alimony are not controlling in a case such as this one where the original order of allowance is expressly limited “until further order of Court.” Even if those cases be deemed applicable, it seems evident that mere change in circumstances is enough and the sufficiency of such change is a question to be determined by the trial judge.

The instant situation suggests an analogy to modification of a custody order under section 138, Civil Code, which says: “In actions for divorce or for separate maintenance the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody of such minor children as may seem necessary or proper and may at any time modify or vacate the same. . . .” In this connection the courts have reduced the “change of circumstances” rule to a mere matter of “evidence that the court may consider in the exercise of its discretion” (Urquhart v. Urquhart, 196 Cal.App.2d 297 , 301-302 [ 16 Cal.Rptr. 469 ]).

Goto v. Goto, 52 Cal.2d 118 , 123 [ 338 P.2d 450 ] : “This court has declared the so-called ‘changed circumstance’ rule

Kelly v. Kelly, 75 Cal.App.2d 408 , 415-416 [ 171 P.2d 95 ]: “It seems to us that the question of ‘changed circumstances’ is but another form of evidence which the court may consider in the exercise of its discretion to hear and decide the question of modification of custody orders previously made. But notwithstanding ‘ changed circumstances, ’ there can be no doubt that once jurisdiction attaches to grant a divorce and award custody of the minor children of the marriage, our statute provides that such jurisdiction is continuing and the power to amend, modify or annul an award of custody as existing conditions demand ever after remains. . . . The so-called rule means only that the action of the court in refusing to modify an order of custody unless there is a showing of ‘ changed circumstances’ does not amount to an abuse of discretion.”

Frizzell v. Frizzell, 158 Cal.App.2d 652 , 655 [ 323 P.2d 188 ] : “The rule that there must be a showing of ‘changed circumstances’ has no application where the trial court has modified a decree. That rule only applies where the trial court has refused to modify a decree and it is contended an abuse of discretion occurred. To show such abuse there must be a showing of changed cricumstances. ’ ’

To the same effect see Dotsch v. Grimes, 75 Cal.App.2d 418 , 421 [ 171 P.2d 506 ]; McKee v. McKee, 76 Cal.App.2d 728 , 731 [ 174 P.2d 18 ]; Horsley v. Horsley, 77 Cal.App.2d 442 , 446-447 [ 175 P.2d 580 ] ; Noon v. Noon, 84 Cal.App.2d 374 , 380 [ 191 P.2d 35 ] ; Harris v. Harris, 186 Cal.App.2d 788 , 792 [ 9 Cal.Rptr. 300 ] ; Stack v. Stack, 189 Cal.App.2d 357 , 369-370 [11 Gal.Rptr. 177]. In Stack the court says, at page 370: “The only ‘rule’ consistently applied is that the court may modify or vacate its order ‘at any time.’ (Civ. Code, § 138 ; cf. Exley v. Exley, supra, 101 Cal.App.2d 835 [ 226 P.2d 662 ].) The mother’s principal reliance is upon the change of circumstances ‘rule.’ As we have seen, it is no longer a rule, if it ever was one.”

This reasoning seems logically applicable to exercise of a

Illustration of what has just been said concerning change of circumstances is found in Howard v. Howard, supra, 141 Cal.App.2d 233 , 243, wherein this court reduced an attorney fee award because it had proved excessive in the light of subsequent events. The ruling is supported by Warner v. Warner, 34 Cal.2d 838 , 841 [ 215 P.2d 20 ], therein quoted. The determination of whether the change in circumstances is so substantial as to warrant a modification of the support allowance, rests with the trial judge to be exercised in his sound discretion. Quoting Howard again, at page 239 : “The award thus reached cannot be set aside in the absence of a clear abuse of discretion. On the former appeal of this case, 128 Cal.App.2d 188 , this court said at page 190 [ 275 P.2d 93 ] : ‘Abuse of discretion is never presumed. It must be affirmatively established. A reviewing court is not authorized to revise the lower court’s judgment even if it should be of the opinion that it would have made a different award had the matter been submitted to its judgment in the first instance, in the absence of a clear abuse of discretion. ’ In Newbauer v. Newbauer, supra, 95 Cal.App.2d 36 , 40 [ 212 P.2d 240 ], the court put it thus: ‘The discretion was the trial judge’s, not ours; and we can only interfere if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge could reasonably have made the order that he did.’ ” In the present instance it appears that defendant appealed from the order of October 30, 1959, directing Mr. Raskin as trustee to pay certain back alimony, reimburse to plaintiff certain sums she had borrowed, and to pay specified outstanding bills; defendant also effected a stay on appeal. He promptly appealed from the order of December 30, 1959, and did not pay plaintiff the $75 per month therein provided for payment of utilities. On March 31, 1960, defendant appealed from the order of March 21, 1960, wherein additional attorney fees of $17,000 were allowed, and posted a stay bond. He likewise appealed from the order of June 1, 1960, awarding attorney fees for defense of his appeal from that order of March 21, 1960 (No. 25115). Certainly respondent was thereby impeded substantially in the maintenance of herself and in

On the other hand, defendant’s own financial condition had improved considerably before the making of the order of September 12, 1960, the one now on appeal. His net income from law practice had been $97,000 for the year 1958, $81,889.87 for 1959, and yielded $76,578 in the first six months of 1960. During that first half of 1960 he reduced his liabilities to the extent of $18,146. Defendant testified in May 1959, to a value of $210,000 upon his oil interests. Thereafter he acquired participations in new wells on leases known as Saunders and Shrubshall. (Defendant’s objections to the use of his own records as a basis for these figures were not well taken. His books and other records are receivable as admissions against interest (5 Wigmore on Evidence, § 1557, p. 411; Wentz v. Guaranteed Sand & Gravel Co., 205 Minn. 611 [ 287 N.W. 113 , 115]; Shenson v. Shenson, 124 Cal.App.2d 747 , 752 [ 269 P.2d 170 , 270 P.2d 896 ]).) These facts, coupled with others that the court considered, undoubtedly provided sound basis for exercise of the discretion which resulted in the allowance in question. Everything considered, $600 support money in addition to occupancy of the home seems not at all excessive.

The order in this appeal No. 25340 must be affirmed.

Appeal No. 24688.

Appeal from those portions of order of October 30, 1959 (outlined under Appeal No. 25340, supra), which direct the trustee to pay out of a trust fund of $642.76 (originally $1,200) certain sums to persons other than defendant. He does not complain of the direction that the balance of $14.60 be paid to him. In support of this appeal we are presented with six volumes of reporter’s transcript aggregating 565 pages, and an opening brief of 56 pages; no reply brief.

During the pendency of Mrs. Rosenthal’s original order to show cause re temporary alimony, etc., the parties made, on April 21, 1959, a written stipulation which provides that plaintiff shall sign a quitclaim deed covering certain oil rights for which the Rosenthals were to receive “a twenty-five (25%) per cent interest in the total sum of $5,000.00, less their share of the attorneys’ fees and costs to be charged against said sum”; that the Rosenthal share of the $5,000 be paid over to attorney Edward M. Raskin who, “will hold said funds

Appellant in his elaborate brief relies upon three principal arguments, (1) res judicata, (2) necessity of change of circumstances, and (3) an automatic expiration of the trust fund and inability of the court to interfere with absolute managerial rights of the husband over community property. Items (1) and (2) are governed by the principles enunciated in our

In April 1959, before the hearing upon the original order to show cause, plaintiff’s attorney and Hr. Raskin, who then was attorney for defendant, informally discussed the termination date of the trust stipulation and, as Mr. Raskin phrased it on the witness stand, “I . . . indicated to him that the funds would be held until an order of Court disposing of these assets would be made. ’ ’ At the time of the hearings of May 7 and May 14 upon the order to show cause, the funds to be impounded with Mr. Raskin were not in his hands and were never received until June 25, 1959. So the court made no order disposing of same on June 5. On July 24, the return date of the modification order to show cause, the court pursuant to stipulation ordered certain payments made from the fund in accordance with the above quotation from the order of that date. On October 9 a similar order was made, above quoted. About August 28th Mr. Raskin in response to a request from appellant’s attorney, Mr. Cook, for payment to him of $520 out of the fund so he could disburse it pursuant to previous court order, advised “that I can’t give him the money because the parties won’t permit it, and I will hold it pursuant to order of Court. That is the effect of it, and I think that sums up the situation to date so far as these funds are concerned. ’ ’

During the hearing on October 30 when the court said it would order $200 paid by the trustee to defendant, he himself said this had been paid by him to Mr. Nast by withholding it from Mrs. Rosenthal, and that it should be paid to her by the trustee. (Incidentally, this is one of the items mentioned in defendant's notice of appeal.)

Plainly, these request orders for disbursement of specific items from the trust fund were recognitions of its continued status of property in custodia legis. That this was the correct legal aspect of the matter is indicated by Hise v. Superior Court, 21 Cal.2d 614 , 625 [ 134 P.2d 748 ].

The argument that a husband during the progress of a divorce suit has ‘ ‘ absolute and exclusive power and right to control and manage the community property, subject to the obligation to account” is novel indeed. One of the declared purposes of this appeal is “ [t]o discourage and prevent Court and/or Plaintiff Wife (Respondent) from unnecessarily and improperly interfering with and/or usurping the Husband’s absolute right of management and control of the com

Cases, such as Vai v. Sank of America, 56 Cal.2d 329 , 336-337 [ 15 Cal.Rptr. 71 , 364 P.2d 247 ], Harrold v. Harrold, 43 Cal.2d 77 , 81 [ 271 P.2d 489 ], and Jorgensen v. Jorgensen, 32 Cal.2d 13 , 21 [ 193 P.2d 728 ], are not contrary to the views herein expressed. They do not deal with the same problem and are concerned primarily with the continuance of the husband’s fiduciary status during the pendency of the divorce action. In no way do they expressly or impliedly negate the control which the court may exercise for the protection of the wife during the litigation.

The situation at the time of making the order of October 30 was that both parties when convenience dictated had recognized the trust as continuing to exist. The trustee had refused to act without specific order of court, the money (at that time reduced to $642.76) was practically if not technically in custodia legis; it was community property and the court had power and discretion to require such disposition

Other arguments of counsel require no separate discussion. We find all of appellant’s claims of error and want of jurisdiction to be untenable and the order must be affirmed.

Conclusion

The records of these three appeals disclose that the respective trial judges were acutely conscious of appellant’s persistently technical and dilatory opposition to plaintiff’s motions and of his recurring offensive conduct and language toward the judge. Everything considered, each of these judges was patient beyond the call for equanimity and impartiality. None of them abused his discretion. We do not discount the fact that appellant was given considerable provocation by opposing counsel for his manifest choler, but that did not measure his own duty of respectful conduct toward the court and promotion of expeditious administration of the law, for he is an attorney at law.

The order involved in each of the appeals numbered 25115, 25340 and 24688, is affirmed.

Fox, P. J., and Herndon, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied January 17, 1962.