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District Court of Appeal, Second District, Division 1, California.


Civ. 16143, 16224.

Decided: January 28, 1948

Gordon W. Levoy, of Los Angeles, for appellant. Hahn, Ross & Goldstone and E. L. Saunders, all of Los Angeles, for respondent.

On January 7, 1947, a final decree of divorce was entered in this action by the terms of which appellant was ordered to pay respondent $100.00 per month for the support of the child, $300.00 for medical expenses, $1,750.00 attorneys fees, and $75.00 costs. From this judgment the defendant appealed.

At a hearing on April 15, 1947 the court found that appellant had the ability to comply with these orders, had failed to comply with any of them, held him in contempt and issued a bench warrant for his arrest. Also at that time the court ordered that he pay forthwith $1,000.00 on attorneys fees and $20.00 costs on appeal, and further that he deposit with the court trustee $7,500.00 as security for the sums then due and to become due. Appellant has complied with none of these orders. He appealed from them on June 12, 1947. On July 25, 1947, appellant filed a petition for a writ of certiorari seeking a review of the jurisdiction of the court on these matters, which was denied by the District Court of Appeal on August 5, 1947 (Civil No. 16110). A petition for rehearing was denied August 18, 1947, and a petition for a hearing in the Supreme Court was denied October 18, 1947.

Appellant has sold his property in California, departing from the state, and his whereabouts are unknown to respondent.

Respondent's affidavit on this motion discloses that she has no money attorneys fees or costs on appeal, and that she is supporting the minor child by borrowing money. No affidavit of appellant himself is filed by him in opposition to this motion. There is an affidavit of his lawyer which meets none of the issues involved herein but is noteworthy in that it fails to disclose where appellant is located.

Appellant's opposition to this motion is based upon his claim that the court erred in deciding certain matters of law at the trial and that certain findings are not justified by the evidence. These matters may be properly before the court in a consideration of the appeal but are not pertinent to the decision of this motion.

Appellant relies on Pugliese v. Pugliese, 200 Cal. 652, 254 P. 266, as authority that this motion should be denied. The denial of the motion in that case was strictly on the ground that there had been an insufficient factual showing to justify granting of the order. The record there showed that the appellant had made all payments required for the support of the minor child and for respondent's costs. The only matter in which he was delinquent was in regard to attorneys fees. Upon a hearing charging the appellant with contempt for nonpayment of the attorneys fees the superior court held that he did not have the ability to pay and dismissed the proceedings. Furthermore, there was no showing that respondent, herself, in Pugliese v. Pugliese, supra, was not able to pay counsel to represent her on appeal. As the facts in that case in no manner parallel those of this case, it is not persuasive on the matter before us. In a proceeding of this nature it is elementary that it must depend upon the facts before the court.

Taking into consideration all of the circumstances involved herein as shown by the record, if appellant desires to proceed with his attack on the judgment, there is every reason why he must expect to furnish respondent with the money to make a defense. The motion in this case affords a proper remedy for the situation shown to exist. Borenstein v. Borenstein, 11 Cal.2d 301, 79 P.2d 388.

The motion is granted and it is hereby ordered, that all proceedings on appeal be and the same are hereby stayed until such time as appellant has complied with the orders of the Superior Court made April 15, 1947 and entered in that court on April 28, 1947.

BARTLETT, Justice pro tem.

DORAN, Acting P. J., and WHITE, J., concur.

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