Line v. Line

Appeal is taken herein by the defendant from that portion of the interlocutory judgment of divorce reading as follows: ‘ ‘ The parties having stipulated in said property settlement agreement that the application of the wife for attorney’s fees and court costs be continued, and the same having been continued by them until the time of trial, and the same having been heard at this time, the Court now finds that plaintiff is entitled to her attorney’s fees and court costs herein incurred and defendant is ordered to pay direct to Paul R. Hutchinson, attorney for plaintiff, the sum of $2500.00, on account of said attorney’s fees, and the sum of $11.50 on account of court costs, which sums are ordered paid forthwith.”

Plaintiff and defendant are husband and wife. The evidence discloses that at the time of their separation on March 15, 1945, substantial grounds existed whereby plaintiff was entitled to a divorce against defendant, that she had a proper claim upon certain community property then owned by the parties and for support and suit money in event of suit. Nego

Thereafter, on August 7, 1945, the plaintiff filed her complaint against the defendant for a divorce, alleging grounds of extreme cruelty, that she was unable to pay her attorney’s fees herself and that the defendant was able to do so, that prior to the filing of the action the parties had entered into

Appellant was duly served with such complaint and summons and having failed to enter any appearance his default was regularly entered and the ease was set down for hearing as a default divorce. At such default trial hearing the attorney for defendant appeared, although neither defendant nor any witness in his behalf was present. Defendant’s attorney took no part in the proceedings, nor raised any objections to any portion thereof excepting his oral protest to the allowance of any sum as attorney’s fees for plaintiff’s counsel in excess of $500. He made no proffer of any evidence, asked for no continuance, nor for any permission to intervene or reopen the case, or to take any proceeding directed toward the setting aside of the defendant’s default for surprise or upon any other ground. Evidence was adduced relative to the income of the defendant, the amount of property involved in the action, and as to the extent of the legal services which were rendered by plaintiff’s counsel. The court permitted the defendant’s attorney to state his objections to the amount to be allowed as such attorney’s fee, as a friend of the court, and following the conclusion of such hearing allowed the sum of $2,500 as attorney’s fees for plaintiff’s counsel.

Defendant now complains that the trial court erred in refusing to allow him to present evidence at the default hearing as to his financial ability to pay any attorney’s fees for the services rendered by his wife’s attorney, and her financial necessity therefor. The record fails to disclose any request by defendant, through his counsel or otherwise, for permission of the court to present any evidence whatsoever. In any event the defendant had previously been served with summons and complaint and was fully advised thereby that the plaintiff sought an order by the court for defendant to pay plaintiff’s counsel fees in the sum of $2,500 in such action. Defendant took no objection to such complaint, either by

Defendant questions the jurisdiction of the trial court to make any order whatsoever for attorney fees for plaintiff’s counsel because of the fact that, as a part of the property settlement agreement, the parties agreed that the court might fix and determine at the trial, or default hearing, the amount of such fees to be paid by the husband. Defendant cites in support of this theory, McCahan v. McCahan (1920), 47 Cal.App. 173 [ 190 P. 458 ], and other cases holding that an agreement in advance and in anticipation of a divorce being brought, to pay certain counsel fees and costs, may operate to facilitate a dissolution of the marriage tie and, such being its effect, is void as contra bonos mores. Not only does the instant case factually differ, in that no amount was stipulated in the agreement which might attempt to limit defendant’s liability for future fees and costs, but, as is pointed out in the McCahan case, an agreement to allow the court to determine the amount of attorney’s fees to be paid by a husband for legal services rendered to a wife in a divorce action brought against him by her, only stipulates to the legal rights already possessed by the wife under the provisions of the Civil Code (§§137, 137.5). The matter of compelling the husband to pay the wife any money necessary to prosecute or defend the cause is a matter solely within the court’s discretion and any agreement purporting to otherwise settle such matter is subject to an examination by the court. (See Steinmetz v. Steinmetz (1924), 67 Cal.App. 195 [ 227 P. 713 ].)

The defendant contends that, irrespective of the validity of the agreement concerning such attorney’s fees, in the absence of an order to show cause being served upon the defendant and a stipulation entered in the minutes of the court to continue the matter of the fixation of all attorney fees and costs to the time of trial, no allowance may be made for the past services which were included by the court in its fee

Defendant asks us to review the sufficiency of the evidence to support the allowance of a fee of $2,500. This ground of appeal is not available to an appealing defendant whose default has been taken. Such a defaulting appellant must confine his attack to the consideration of jurisdiction or of the sufficiency of the pleadings. {Reed Orchard, Co. v. Superior Court (1912), 19 Cal.App. 648 , 662 [ 128 P. 9 , 18];

The judgment is .affirmed.

Shinn, Acting P. J., and Wood, J., concurred.

A petition for a rehearing was denied September 5, 1946.