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District Court of Appeal, Second District, Division 2, California.


Civ. 16904.

Decided: January 31, 1949

Edward Raiden, of Los Angeles, for appellant. Melanie Dynner, of Hawthorne, for respondent.

This is a motion to dismiss three appeals in the same action on the ground that the Rules on Appeal have not been complied with. The three several appeals will be discussed in their order. The facts are contained in the clerk's certificate and the supporting affidavits.

Appeal 1.

On July 16, 1948, an interlocutory decree of divorce was entered in favor of respondent husband, personal service having been made on appellant in Nevada on May 28, 1948. Seven days after judgment appellant filed her motion to vacate the default decree without stating any grounds for the motion. However, she attached two pleadings, to wit, (1) a proposed answer denying the alleged cruelty and denied also that respondent is a fit and proper person to have custody of the two infant children and (2) a proposed cross complaint on the ground of extreme cruelty. On July 29 the court made its order denying the motion. Notice of such ruling was served on July 29 and filed August 2, 1948. August 21 notice of appeal from such order was filed, and on August 27 notice to clerk to prepare transcript was filed. The clerk mailed an estimate of the costs which appellant received October 25. No arrangements had been made with the clerk for costs of printing record on appeal on November 15 when the Presiding Justice made an order relieving appellant from default in the matter of paying the costs for the clerk's transcript.

Conceding that the order relieving appellant from default was valid and effective, appellant has a more serious handicap than her nonaction and neglect to pay the costs to the clerk. The order denying a motion to vacate a decree is not appealable if the grounds upon which the motion was made existed before the entry of the decree, and such an appeal will be dismissed. Colbert v. Colbert, 28 Cal.2d 276, 281, 169 P.2d 633. So far as the record discloses every fact concerning the decree was known and available as well after as before its entry. It follows that appeal 1 should be dismissed.

Appeal 2.

During the pendency of the action in the court below but after notice of appeal had been filed, on September 7 appellant filed her notice of motion for support of the children pending appeal and for costs and counsel fees. On October 4 the court made its order awarding an allowance for support of the children but denied the motion for costs and counsel fees on appeal. Notice of appeal from such order was filed on November 5. Granting the contentions of appellant that the several steps taken by her to effect an appeal from the order denying her costs and counsel fees and that the ex parte order relieving her of her default for not having paid the clerk the costs of a transcript are well taken, again she is faced with a more serious problem than is involved in the matter of delay in such payments to the clerk.

To entitle appellant to an order requiring respondent to pay her costs and attorney's fees on an appeal it was indispensable to such order that she was his wife at the time of her application to the court. The record reveals that on July 23, 1948, Mrs. Reeves obtained a decree of absolute divorce in the state of Nevada; that it has not been annulled; that she has remarried and resides in the sister state. That such a decree, so fortified by time and statute, would permit the superior court to make such an order as that sought by appellant is unthinkable. It would be contrary to the statute which makes a subsisting marriage relation the sine qua non of such order. Civ.Code, sec. 137; Colbert v. Colbert, supra, 28 Cal.2d 276, at page 279, 169 P.2d 633, and authorities there cited. The marital status of the parties at the time of the application for costs and counsel fees is determinative of the court's power to make an award. Nelson v. Nelson, 7 Cal.2d 449, 452, 60 P.2d 982. In April, 1948, appellant without justifiable excuse abandoned the home of respondent and moved the children to Nevada. Having there procured a divorce upon her own application she is estopped now to demand expenses for conducting an appeal in the result of which she could have no interest.

Appeal 3.

As to her third appeal appellant is less unfortunate. This appeal is from the interlocutory decree entered July 16, 1948. Notice of entry was never served on appellant. But she filed her motion for a new trial on August 30 which was within time. Code Civ.Proc., sec. 659. It was denied on October 26, 1948, and her notice of appeal from the judgment was filed November 5 which also was in time as provided by Rule 3(a) of Rules on Appeal, as follows: “* if the motion is denied, the time for filing the notice of appeal from the judgment is extended for all parties until 30 days after denial of the motion *.” Inasmuch as the appeal from the judgment was properly lodged in this court, the only ground for a dismissal thereof must obtain in appellant's noncompliance with the Rules on Appeal. “Within 10 days after filing the notice of appeal, the appellant shall serve on the respondent and file with the clerk of the superior court a notice designating the papers or records on file *” which he desires incorporated in the record on appeal. Rule 5(a). Such notice “shall not be effective * unless, within 10 days after notification from the clerk of his estimate of the cost of preparing the transcript * appellant shall make arrangements with the clerk for payment thereof.” Rule 5(c).

Appellant having filed a timely appeal on November 5, 1948, Rule 3(a), thereafter on November 10, 1948, pursuant to Rule 5(b) she served upon respondent and filed with the clerk of the superior court a notice to prepare a clerk's transcript, specifying the documents required, and also a reporter's transcript of the argument had on July 29, 1948, on the motion to open default and vacate the decree as well as a reporter's transcript of the trial of July 15, 1948. The clerk's certificate discloses that the clerk never served appellant with notice of costs of preparing transcripts for appeal 3.

In this state of the record appellant obtained an ex parte order on November 15, 1948, extending her time to pay for the clerk's transcript on appeal 3 “until this court shall have had an opportunity to determine her right to counsel fees and costs on appeal No. 2, and if this court decides that the trial court has jurisdiction to award counsel fees and costs on appeal, until the trial court has had an opportunity to award or deny such counsel fees and costs.” Inasmuch as appeal 3 is now regularly in this court pursuant to Rules on Appeal there is no necessity for the ex parte order of November 15, 1948.

It is therefore ordered that appeals 1 and 2 are dismissed; that the order of November 15, 1948, be and it is vacated; and that appellant's time for the payment for the reporter's and clerk's transcript is extended to February 7, 1949.

MOORE, Presiding Justice.

McCOMB and WILSON, JJ., concur.