WEIL v. WEIL

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

WEIL v. WEIL.

Civ. 17327.

Decided: November 16, 1950

Norman Newmark, George I. Devor, Los Angeles, for appellant. Pacht, Warne, Ross & Bernhard, Isaac Pacht, Shirley A. Siegel, Rudolph Pacht, all of Beverly Hills, for respondent.

Three separate appeals are before the court which by stipulation have been consolidated for hearing upon a single record: (1) defendant's appeal from an interlocutory judgment of divorce in her favor granted upon her amended cross-complaint; (2) her appeal from an order denying an allowance of attorneys' fees on the hearing of her motion for a new trial; (3) her appeal from an order denying an allowance of attorney's fees for the conduct of her appeal from the judgment.

Defendant's Appeal from the Judgment

Plaintiff commenced the action for a divorce from his wife on the ground of cruelty; she filed a cross-complaint charging cruelty and desertion on the part of plaintiff and seeking a decree of separate maintenance; she also sought the cancellation of a deed which she had previously executed to plaintiff and the recovery of furs and jewelry that plaintiff had given her. Upon the trial of the action before Judge William S. Baird she amended her cross-complaint under conditions hereafter related so as to ask for a divorce.

Defendant assigns several grounds for reversal of the judgment, the principal one being the charge that the trial judge was guilty of misconduct and prejudicial error in coercing her against her will, as conditions to granting her any relief at all, (1) to amend her cross-complaint so as to pray for a divorce although she desired and had prayed for a decree of separate maintenance, and (2) to agree to accept as final any judgment which he might render.

Upon defendant's compliance with the requirements of the trial judge an interlocutory decree of divorce was granted in her favor providing that plaintiff should pay her $300 a month as support and maintenance commencing November 1, 1948, for a period of 30 months, awarding her jewelry and furs which were then in plaintiff's possession, together with attorney's fees for the trial of the action. The judgment decreed that the home property covered by the deed which she sought to have set aside was the sole and separate property of plaintiff free and clear of any claim of defendant and that the declaration of homestead previously filed thereon by defendant was null and void.

The decree recited that findings of fact and conclusions of law had been waived by the parties and that defendant, in open court, had expressed her willingness to consent to and accept the decision and judgment as final; that plaintiff had treated defendant in an extremely cruel and inhuman manner, and wrongfully inflicted grievous mental suffering and pain upon her without any cause or reason therefor, all of which had caused her to become sick and ill in mind and body, specifically finding as true certain allegations of physical violence committed by plaintiff upon defendant.

After the entry of judgment defendant obtained a substitution of herself in propria persona in the place of her attorney who had represented her during the trial and in her own behalf filed a notice of motion for a new trial. Thereafter her present counsel were employed and the motion for new trial was presented upon the affidavits of defendant, her former counsel, and one of counsel for plaintiff. Defendant's affidavits relate the following: After the trial had progressed for several days the trial judge called both counsel to the bench and stated that he felt it was useless to prolong the trial and in the event defendant would amend her cross-complaint and ask for a divorce he was ‘disposed to grant her a divorce and alimony for a short period’ but he ‘didn't believe in separate maintenance for short marriages' and did not consider that separate maintenance should be granted in this case. The trial continued for two or three days and in further conferences in chambers between the judge and counsel for both parties defendant's attorney stated his client did not desire to amend her cross-complaint to ask for a divorce. The trial was thereupon resumed and near the close of the evidence the court said ‘there was enough evidence to justify him in granting a divorce to either party’ but if defendant would amend her cross-complaint to pray for a divorce he would grant it together with a specified amount of alimony, but if she did not so amend her cross-complaint ‘he would not grant her separate maintenance but would grant a divorce to plaintiff’ in which event she could not be given any alimony. On the last day of the trial there was another conference in chambers at which time the judge stated to defendant's counsel that he could tell his client that in the event she did not amend her cross-complaint as previously suggested and did not consent to accept the judgment of the trial judge as final he, the judge, intended to grant a divorce to plaintiff. Thereupon defendant's counsel told her of the conference and of the judge's ultimatum and advised her that if she wished to obtain a judgment for anything in addition to her furs and jewels she would have to amend her cross-complaint to pray for a divorce and to state in open court that she accepted the judgment as final. Realizing that if she did not comply with the judge's requirement she would lose everything and get nothing, defendant authorized her counsel to amend her cross-complaint to ask for a divorce and she thereafter consented in open court to accept as final such judgment as the court might render.

To the foregoing affidavits of defendant and her attorney plaintiff's counsel presented an affidavit which is more or less palliative but the salient features of the affidavits of defendant and her counsel are not contradicted. There is no denial that the court stated he was in a position to grant a divorce to either party; there is no denial that the trial judge constituted defendant's counsel as the court's messenger to deliver his ultimatum to her; there is no denial of the antipathy expressed by the trial judge to separate maintenance judgments.

The trial judge neither filed an affidavit nor made any statement from the bench denying any part of the affidavits filed on behalf of defendant.

The affidavit of plaintiff's attorney refers to statements made by the judge in chambers to the effect that in his opinion defendant had ‘embarked on a campaign’ to obtain for herself an interest in trust funds to which plaintiff had ‘invasion rights,'1 that ‘her continued pressure and intrigue’ along those lines was a basic cause of the difficulties of the parties, and that the evidence introduced by plaintiff ‘was more than ample to justify a decree in his favor.’ The futility of plaintiff's argument based on such statements is found in the rule that whatever may have been in the judge's mind or expressed orally, or even in a formal opinion, cannot be employed to restrict, explain or override his decision embodied in the findings and judgment. Buckhantz v. R. G. Hamilton & Co., 71 Cal.App.2d 777, 781, 163 P.2d 756; Stone v. Los Angeles County Flood Control Dist., 81 Cal.App.2d 902, 907, 185 P.2d 396; Wuest v. Wuest, 72 Cal.App.2d 101, 107, 164 P.2d 32. Despite the judge's aspersions he rendered judgment in favor of defendant.

In open court, after the last of the conferences in chambers had terminated, with the parties and their counsel present, defendant's attorney moved to amend her cross-complaint to pray for a divorce, which motion was granted by the court. Then the following occurred:

‘The Court: Now, Mrs. Weil, before I pass on this, I am going to inform you now that this judgment—if I give you judgment—I haven't made up my mind yet, because it has to depend on you, because I told your counsel that—and I say this to you: you are well represented by very competent counsel, who raised more fuss than I would have in his place, but as it is his business to make a row, he certainly does it—you understand that this judgment, if I give you one, is to be final. Do you understand that?

‘Mrs. Weil: Yes, your Honor, I do.

‘The Court: There are to be no more suits over this property or over your assets or over your liabilities, or over your welfare or his welfare.

‘Mrs. Weil: I understand that and accept it.

‘The Court: That will be final.’

After a discussion relating to details of the judgment the court said: ‘The wedding gifts do not mean anything. I think I have made a very fair deal. We will just let things go as is, unless you have some personal things of your own that you had when you were married; the rest of them will go into the general distribution as I have stated. You heard your client stipulate that this is final in all respects in regard to this law suit or any other outcome of this law suit, that it is now terminated for good, once and for all. (Addressing Mrs. Weil): I want your counsel, who represented you, to know that he is in on that, and that takes care of that.’

From the foregoing it is manifest that even after defendant's motion to amend her cross-complaint had been made as demanded by the judge and granted it was not certain that the decree would be in defendant's favor as evidenced by the judge's statement: ‘if I give you judgment—I haven't made up my mind yet.’ He did say that if he gave her judgment it was to be on condition that she agreed it should be final.

When it was suggested that the judge disqualify himself from hearing a subsequent motion in the case he said: ‘That lady had her choice, to choose one, and I gave her the divorce. I could have given it to the man just as well, but I did not desire to saddle this man with separate maintenance, which has always been against my principles, on short marriages. Now, she could have refused to accept my suggestion, which she—sitting at this table—did accept, and she had advice of counsel as well, and competent counsel. She could have said, ‘No, I don't want to do that,’ and I could have given a divorce to the man, and then she could have appealed it.'

When the motion for a new trial came on for hearing defendant's counsel cited authorities holding that it is error for the trial court to coerce a wife into changing her action from one of separate maintenance to one of divorce. The judge purported to distinguish such cases on the ground that the parties thereot had been married ‘for a much longer time’ than the parties to the instant proceeding, again stating his opposition to separate maintenance ‘for short marriages.’ In giving his reasons for having forced defendant to accept his judgment as final the judge said: ‘That was done because of the fact that she had changed lawyers, according to the record, five or six times and I wanted this litigation to cease.’ The fact is that defendant had changed attorneys only twice, not ‘five or six times.’ Moreover, the trial judge was without right or power to compel ‘litigation to cease’ merely because he was of the opinion that it should terminate with the decree he was about to render or because he thought he had ‘made a very fair deal.’

The question of the sufficiency of the evidence to sustain the judgment in favor of defendant, or to have sustained a judgment for plaintiff if it had been granted, is not before us on this appeal. From the court's statement that a decree in favor of either party was justified by the record it follows that if the evidence was sufficient to sustain a decree of divorce in favor of defendant it was manifestly sufficient to sustain a decree of separate maintenance. If she had a cause of action for divorce she had the right, without applying for a divorce, to maintain an action against plaintiff for separate maintenance. Civ.Code, sec. 137. It was her prerogative, not the court's, to determine what relief she would seek.

When allegations and proof of cruelty are made by both parties it is within the discretion of the trial court to award a decree to either. Martin v. Martin, 79 Cal.App.2d 409, 412, 179 P.2d 655; Norris v. Norris, 50 Cal.App.2d 726, 730, 123 P.2d 847. If the evidence would have sustained a decree in favor of either plaintiff or defendant the court was without power to impose as conditions to a judgment for defendant that she (1) pray for a divorce when she did not want it, or (2) abandon her cause of action praying for what she did want, or (3) waive her statutory right of appeal in the event she was dissatisfied with the judgment.

In the judge's statement that the evidence was sufficient to justify the granting of a divorce to either party there is the implication that although defendant had proved her case he would render judgment in accord with plaintiff's evidence, would disbelieve that of defendant unless she amended her cross-complaint as demanded, and would believe her evidence only on condition that her pleading should be so amended.

It was the function of the trial court to evaluate the evidence and to determine the credibility of the witnesses but it is impossible to ascertain how this function could have been judicially performed if the evidence should be weighed and the credibility of the witnesses determined by defendant's acquiescence or her refusal to acquiesce in the court's demand that her pleading be amended to accord with its wishes. She acceded, albeit unwillingly, to the exacting conditions imposed by the court, and upon the filing of the amendment judgment was rendered in her favor impliedly finding that plaintiff's charges in his complaint were not true and expressly finding that defendant's general allegations of cruelty on the part of plaintiff were true.

Notwithstanding several paragraphs of plaintiff's brief are devoted to the discussion of the duty of a trial judge in a domestic relations action to conciliate and to effect an adjustment, together with the citation of numerous court decisions and articles by legal and sociological writers, no part of the record is pointed out that indicates the trial judge made any effort to act as a conciliator or to bring about an adjustment of the differences existing between the parties. Instead of conciliating and adjusting he demanded that defendant change her cause of action and agree that such judgment as might be rendered should become final. As to the latter condition which was exacted by the court plaintiff himself correctly states in his brief: ‘He [the judge] must not coerce the parties into accepting his decision as final. The course is open to him to bind them against their will simply by entering judgment, leaving to them their statutory right of appeal. True conciliation leaves the parties free to accept or reject the judge's suggestions.’

Each case should be tried according to the rules of law established by statute and by the decisions of the higher courts and not according to whimsical ideas and prejudices of the trial judge. ‘The trial of a case should not only be fair in fact, but it should also appear to be fair. And where the contrary appears it shocks the judicial instinct to allow the judgment to stand.’ Pratt v. Pratt, 141 Cal. 247, 252, 74 P. 742, 744.

It was judicial coercion to compel defendant to consent to a judgment in her favor for something she did not seek, something she did not desire, in a form objectionable to her, and to which she consented only because of the court's threat that she would not receive anything at all unless she consented to the court's demands hereinbefore related, including the surrender of her statutory right of appeal. The latter is a valuable right which a litigant should not be coerced or cajoled into relinquishing. Had the court in granting defendant a divorce awarded support money in an insignificant amount and for only a short period of time defendant would have had the right to appeal on the ground that the court had abused its discretion in that regard and she would have been entitled to a review of the judgment by the higher courts. Such right she was compelled to forego without any knowledge of what was in the judge's mind or what amount, if any, he intended to allow for her support.

Strikingly analogous to the instant case in some particulars is Del Ruth v. Del Ruth, 75 Cal.App.2d 638, 171 P.2d 34. There the judge conferred with the wife alone in chambers as to the possibility of reconciliation, stated he did not look with favor upon separate maintenance, suggested that she amend her complaint to ask for a divorce, and said if he granted her a divorce there could be an allowance of support money but if the divorce should be granted to her husband alimony would not be allowed. A decree which followed in favor of the husband was reversed. The court said, 71 Cal.App.2d at page 648, 171 P.2d at page 40: ‘Plaintiff had to proceed under the handicap of a preconceived and declared disinclination of the judge to award her the only relief which she sought.’ In that case, as here, the judge said there was ‘plenty of proof’ to establish the charges and counter-charges, but, said the appellate court, ‘it developed that plaintiff's proof was not strong enough to convince the judge that she should have separate maintenance.’ The Del Ruth case is different from the instant action only in that the court had rejected certain material evidence offered by the plaintiff. Like the instant case, as pointed out on appeal, one of the reasons for reversal was that the judge had an ‘aversion to granting separate maintenance’ although according to his own statement ‘there was no insufficiency of evidence to warrant a judgment in favor of plaintiff.’

Another case in which the wife was coerced to waive her right to appeal is Wuest v. Wuest, 53 Cal.App.2d 339, 127 P.2d 934, 936, where the judge had informed the plaintiff's attorney that unless she signed a stipulation disposing of the community property in a certain manner he ‘might not’ grant her a decree and insisted that she waive findings to the end that no appeal might be prosecuted from the interlocutory decree. Said the appellate court: ‘The right of appeal is as sacred and inviolable as the right to a trial, and when by judicial oppression such right is violated or vitiated, the guaranteed and substantial rights of a party have been materially affected thereby.’ The court further said that the trial judge had no right to advise the plaintiff through her counsel, in effect, that although she had established and proved a case entitling her to an interlocutory judgment of divorce, nevertheless such a judgment would not be granted unless she stipulated to the disposition of the community property in accordance with the plan suggested by the judge.

The judgment in Rosenfield v. Vosper, 45 Cal.App.2d 365, 114 P.2d 29, 31, was reversed by reason of the judge's expessed predisposition as to the amount for which the action should be settled. The judge told counsel for defendants to tell his clients ‘it would be to their best interests to settle on that basis.’ Upon their refusal judgment was ordered for a much larger amount than that previously suggested by the judge. The court said the trial judge's action was an irregularity highly prejudicial to the defendants in the action.

Plaintiff has futilely attempted to distinguish the decisions above cited from the instant case by reason of factual differences. Of course the facts and surrounding conditions are different—rarely are two cases identical. Nevertheless in those cases the court condemned, as this decision condemns, all coercive and arbitrary acts of a judge based on preconceived ideas as to the manner in which controversies of a certain character should be adjudicated without regard to the evidence or the legal rights of the parties. The minor differences between the facts in those decisions and those of the instant matter do not extinguish the fundamental principles of law expressed therein or the denouncement of arbitrary conduct of the trial judge.

It follows that the misconduct of the trial judge complained of constitutes prejudicial error by reason of which the judgment must be reversed.

Since the only question which we are called upon to determine is whether the trial judge was guilty of prejudicial misconduct and error in his actions above narrated, we have not related or evaluated the evidence offered by each party against the other during the fifteen-day trial. In determining the question before us we have given no consideration to the pretentious and reiterated panegyrics in plaintiff's brief relating to himself and to his social, professional and scientific standing in the community with which the brief abounds, nor to the repetitive invective and abuse directed against defendant. Such superfluous matter does not provide a basis for sustaining the trial judge's action in constraining defendant to amend her pleading in accordance with his fancy and to agree to the finality of the judgment that followed. We have likewise refrained from speculating upon plaintiff's prediction that upon another trial defendant in all likelihood will receive no greater, and possibly less, relief than that given by the judgment here on appeal. She had the right to appeal, she has appealed, and the case will take the course which the law demands, whatever consequences may result from another trial in an atmosphere unfraught with judicial predisposition as to any phase of the case or with a disinclination to render a judgment of any certain character although warranted by the evidence.

Defendant Has Not Waived Her Right to Appeal

Plaintiff contends that defendant waived her right of appeal by reason of her having (1) ‘freely consented to the judgment’ and (2) accepted the benefits awarded to her by the judgment.

The first ground must fall for want of foundation. Had defendant's consent been given freely and without the menace of the situation with which she was confronted her right of appeal would no doubt have been surrendered. However, as we have already revealed, her consent was not the act of her free will and therefore did not operate as a renunciation of her right to seek relief in a higher court.

Plaintiff asserts that defendant accepted the benefits of the judgment in that she (1) demanded of plaintiff's counsel the jewelry and furs which the decree set aside to her as her separate property; (2) through her attorney accepted a portion of the amount allowed to her as counsel fees on the trial; (3) accepted her first check for support awarded by the decree.

Shortly after the rendition of the interlocutory judgment she and her counsel then representing her demanded of plaintiff's attorney the furs and jewelry that had been declared by the judgment to be her separate property, but they were not delivered. Her fruitless demand did not waive her right of appeal.

It appears that defendant's property must have been returned to her at a later date since the record shows that at the hearing of a subsequent motion there was an express agreement and stipulation that such return would be without prejudice to her right of appeal. That stipulation is a sufficient answer to plaintiff's contention in this regard.

The interlocutory judgment was entered on November 1, 1948. By substitution defendant became her own attorney on November 10. On the same day a check for $300 representing her support money for November was sent to the attorney who had represented her until that date. At some time while acting as her own attorney she deposited the check in her bank account. She borrowed other sums of money amounting in all to $1,500 for necessary living expenses. The record does not show whether defendant actually used any part of the $300 check or whether she used for her support the money which she had borrowed. After he present counsel had been employed she sent them a check for $300 for transmission to plaintiff, which reduced her bank balance to $24.66. Her attorneys sent this check to plaintiff's counsel together with two of plaintiff's checks for $300 each for her December and January support which had been sent to her but which she had not cashed. Plaintiff refused to accept the refund of $300 and refused the return of his two uncashed checks. Before the hearing on defendant's motion for support pending appeal and for costs and attorneys' fees on appeal, a fourth check, being for her February support, was sent to her. This check and all previous checks were tendered to plaintiff at the hearing of the last mentioned motion. During the hearing plaintiff offered to stipulate and later conceded that defendant was entitled to an allowance of support money pending appeal in an amount not less than $300 a month. In order to avoid the circuitous procedure of having defendant return to plaintiff the above mentioned $300 and the three uncashed checks and the drawing of new checks by plaintiff to cover payments due under the order for support pending appeal, it was agreed that defendant might retain the $300 represented by the first check and cash the three remaining checks then in her possession without prejudice to defendant's right to appeal and without prejudice to plaintiff's right, if such right existed, to move to dismiss the appeal. Plaintiff has never made such motion.

Since defendant was granted a divorce on the ground of extreme cruelty she was entitled to support and maintenance. She was also entitled to attorneys' fees for the conduct of the trial, the amount of which the court determined and specified in the judgment. The acceptance of support money and attorney's fees which were rightfully hers did not operate to waive her right of appeal. A similar situation arose in Browning v. Browning, 208 Cal. 518, 282 P. 503, which the court said that the wife, who had been successful in the action yet had appealed from portions of the judgment with which she was dissatisfied, was entitled to the amounts allowed for her support and attorneys' fees regardless of the outcome of her appeal; that the receipt by the wife of the sums of money which she had received under the terms of the judgment would not defeat her right to maintain her appeal from portions of the judgment; and even if she should be unsuccessful on the appeal she would still have been entitled to receive from her husband the sums which she actually had received. The court pointed out that it is only in cases where an appellant has received and accepted advantages from the judgment to which she would not be entitled in the event of a reversal of the judgment that her acceptance thereof operates to defeat the appeal. In the instant case there is no question as to defendant's right to attorney's fees for the conduct of the trial and plaintiff stipulated that she was entitled to support money pending appeal. The order for support pending appeal was made effective as of November 1, 1948, the date of entry of the decree. Hence defendant did not receive at any time an amount greater than the court had declared on three occasions to be necessary for her support.

Defendant's position is fortified by authorities from other jurisdictions. In Cunningham v. Cunningham, 60 Nev. 191, 102 P.2d 94, 105 P.2d 398, it is held that a wife who has been awarded a divorce is entitled to support from her husband and to an allowance from him to enable her to prosecute an appeal; that her right of appeal is not waived by her acceptance of that to which she is lawfully entitled; that grounds of bad faith or lack of merit in an appeal urged by the husband in opposition to such allowances cannot be considered by a reviewing court except when manifest from the record. Also in Bass v. Ring, 210 Minn. 598, 299 N.W. 679, the court said that a plaintiff who had accepted the benefits of a judgment awarded to him was not estopped from appealing from unfavorable portions of the judgment where a reversal or modification of the judgment could not possibly affect his right to the benefits he had taken.

Plaintiff relies on Storke v. Storke, 132 Cal. 349, 64 P. 578, and McCaleb v. McCaleb, 32 Cal.App. 648, 163 P. 1045. Both decisions are distinguishable from the instant case just as they were distinguished by the Supreme Court in Browning v. Browning, supra, 208 Cal. 518, 282 P. 503. In the Storke case the trial court had granted a decree of divorce to the husband on account of the wife's extreme cruelty, from which decree she appealed although she had received and retained the support money and attorney's fees awarded to her. The court pointed out that if she succeeded in obtaining a new trial she would have received money which she might not be able to return. The court did not give any consideration to whether or not the money received by the wife was necessary for her support and there was no reason for so doing since the husband had been granted the divorce and the wife was not legally entitled to the support allowed her by the trial court. In the McCaleb case each party had sought a divorce. The court did not grant a decree to either but the wife was awarded support as long as the parties lived apart. The wife moved for a new trial after accepting payments for her support and the husband appealed from the order refusing to dismiss her motion for a new trial. The court confessed it was unable to reconcile Storke v. Storke with the later case of First National Bank v. Wakefield, 138 Cal. 561, 72 P. 151, but determined to follow the precedent established by the former. In First National Bank v. Wakefield, supra, the court referred to the language in the Storke case to the effect that if all provisions of a judgment are connected and dependent so that one part cannot be reversed without reversal of the whole, a party cannot enforce the portion of the judgment in his favor and appeal from that which is against him; but where the provisions of the judgment are not so interdependent that a part of the judgment cannot be set aside without a reversal of the entire judgment the party may appeal from the adverse portion of the judgment while accepting the part in his favor.

In considering the severability of portions of a judgment it should not be overlooked that when a divorce is denied to either party the court may nevertheless award support to the wife, Civ.Code, sec. 136; Fallon v. Fallon, 83 Cal.App.2d 798, 804–805, 189 P.2d 766, while if a divorce is granted to the husband for the offense of the wife no such allowance may be made. Lampson v. Lampson, 171 Cal. 332, 333, 153 P. 238. Hence the wife in Storke v. Storke, supra, was not entitled to support money since the divorce had been granted to the husband and for that reason the Storke case is not authority in the instant action where the wife obtained the divorce and is entitled to support.

In Browning v. Browning, 208 Cal. at page 525, 282 P. at page 506, pointing out that a divorce had been granted to the wife, the court distinguished Storke v. Storke, supra, and McCaleb v. McCaleb, supra, on the ground that ‘in each of these cases the very question at issue upon the appeal was as to whether or not the appellant was entitled to a divorce at all, and hence, of course, entitled to the sums of money which had been paid her, but to which she would have no right in the event of a denial of a divorce.’ The Browning decision compares approvingly Locke Paddon v. Locke Paddon, 194 Cal. 73, 227 P. 715, which is likewise applicable to the facts at bar. Therein it was held that the right of a wife to maintain an action to rescind a property settlement on the ground of fraud was not defeated by the fact that she had received under the agreement certain moneys which she had applied to her living expenses and which she would have been entitled to receive notwithstanding the agreement she was attempting to have set aside. Browning v. Browning was decided long after the Storke and McCaleb cases. Since it distinguishes them on the facts and is the latest expression of the Supreme Court, it must be taken to overrule the earlier decisions in whatever particulars they differ.

The fact that the Browning appeal was from parts of the judgment and the appeal here is from the entire decree is of no significance. While the notice of appeal there was limited to a portion of the judgment it was directed to that part which approved the property settlement agreement providing for her support under which the wife had received payments. Had she succeeded on appeal in obtaining a reversal of that part of the judgment the issue of the amount of support which she would have received would have been reopened, but since she would have been entitled in any event to support her acceptance of payments from her husband did not operate as a waiver of her appeal.

It is a general rule in other jurisdictions and one that should be adhered to that where an appellant's right to a benefit secured by a judgment will not be affected by a reversal of other parts of the judgment, his acceptance of such benefit will not act as a waiver of his appeal from the portions of the judgment with which he is dissatisfied. 4 C.J.S., Appeal and Error, § 1354, pp. 1956–1957; 4 C.J., § 2389, p. 580; 2 Am.Jur. sec. 215, p. 977.

The decision in the Browning case, as well as what we have said in relation to defendant's support, applies likewise to the partial payment of the attorneys' fees allowed to defendant at the close of the trial. Such services were rendered in the trial of the action and the court awarded the amount it deemed to be reasonable therefor. Plaintiff is liable for payment of such amount regardless of the result of the appeal. The same reasoning applies to attorneys' fees as to support money since, as the court said in the Browning case, 208 Cal. at page 526, 282 P. at page 506, the allowance of attorneys' fees has no relation to the remainder of the judgment and no bearing on the result of the appeal. Having been granted a divorce defendant ‘was entitled to an award of her counsel fees and costs and to the collection thereof’. The award of attorneys' fees is separable from the other portions of the judgment and is not affected by the appeal. There is no controversy on this appeal as to whether an award of attorneys' fees should have been made or as to the reasonableness of the amount allowed by the court. Plaintiff has not appealed, therefore as to him the judgment is final. If, by reason of defendant's appeal from the entire judgment any question may be deemed to have been raised relating to her counsel fees such question has been abandoned since she has failed to assign or rely on it in her brief. Black Rock P. M. Dist. v. Summit W. & I. Co., 56 Cal.App.2d 513, 522, 133 P.2d 58; Baker v. Baker, 168 Cal. 346, 350, 143 P. 607; Todd v. Meserve, 93 Cal.App. 370, 390, 269 P. 710.

Since an appellate court is without jurisdiction to increase or reduce the amounts awarded for either support or counsel fees, the appeal cannot operate either to enlarge or to diminish plaintiff's liability. The value of the services rendered by defendant's attorney has been determined by the trial court and plaintiff is chargeable therewith in any event. Therefore the payment by plaintiff and the acceptance by defendant and her attorney of a portion of the amount awarded, or even the whole thereof had it been paid, does not defeat her right to appeal.

In Weil v. Superior Court, 97 Cal.App.2d 373, 217 P.2d 975, and in Weil v. Weil, 97 Cal.App.2d 378, 217 P.2d 979, there are expressions contrary to what we have said in this opinion. When those matters were decided we had before us defendant's notice of appeal which was from the whole of the judgment and plaintiff's reference thereto as an attempt ‘to have her entire judgment reversed.’ Those proceedings related to the right of defendant's former counsel to collect his fees from plaintiff and did not involve defendant or any of her rights. She was not a party thereto and did not participate therein. Her briefs on the instand appeal were not before us and since her appeal is from the entire judgment all questions relating thereto were open at that time for discussion and for our decision. She might, as far as we were then advised, have raised an issue as to the sufficiency of the amount of counsel fees that had been awarded by the judgment. Moreover, the question presented on our prior decisions was not whether fees had been properly allowed or in an appropriate amount, but whether the attorney was entitled at that stage of the case, with the appeal pending and all questions open for decision, to collect the amount awarded for his services. Since by reason of the conditions then existing we could not have determined whether the interlocutory decree of divorce would be affirmed in its entirety or reversed in whole or in part, we made orders that maintained the status quo and suspended the attorney's enforcement of the judgment for his fees until the determination of defendant's appeal. The conclusions which we have hereinbefore expressed, coupled with defendant's failure to raise in her brief any question as to the attorneys' fees allowed on the trial (see cases above cited) lead us to affirm that portion of the judgment. When Weil v. Superior Court, supra, and Weil v. Weil, supra, were before us our attention was not called to the Browning and Cunningham cases, nor to the other authorities herein cited upon the question of attorneys' fees. For the foregoing reasons any statements in those decisions in conflict with what we have said in this opinion are expressly overruled.

Attorneys' Fees on Motion for New Trial

Upon defendant's employment of her present counsel she presented before Judge Baird a motion for attorneys' fees to cover their services in prosecuting the motion for a new trial. The application for fees was denied and defendant has appealed from the order. An amount allowed as attorneys' fees for a trial does not necessarily cover services to be rendered on a motion for a new trial. However, the motion was heard by the same judge who had tried the case and fixed the fee for the trial, and inasmuch as the allowance of counsel fees is largely within the sound discretion of the court, the fee previously allowed may have been considered by the court to have been sufficient to cover the motion for a new trial. Since abuse of discretion does not appear from the record the order will be affirmed.

Attorney's Fees and Costs on Appeal

Defendant's motion for an allowance of attorneys' fees and costs for prosecuting the appeal was heard by Judge Le Roy Dawson. The affidavits filed in support of the motion show that defendant was without funds to maintain herself and to employ counsel and pay costs of appeal; plaintiff had ample funds with which to pay the same; defendant was prosecuting the appeal from the judgment in good faith and on advice of her counsel that she had good and meritorious grounds for attacking the judgment.

Plaintiff's attorney stipulated that plaintiff would pay the costs of preparing the transcript and of printing defendant's briefs, hence the only question is whether the court abused its discretion in denying defendant's application for attorneys' fees on appeal.

Entirely devoid of merit is plaintiff's principal objection that because fees had been allowed to defendant's trial counsel and to two attorneys who had represented her in the preliminary stages of the case, fees should not be allowed to her present attorneys on the appeal. Where the wife appeals from a judgment in a divorce action and it is shown that her appeal is taken in good faith, that she is without sufficient means to pay the costs of the appeal and the fees for the services of her attorney to be rendered therein, and that the husband is able to pay a reasonable sum therefor, it is error to deny her application for an allowance for such purposes. Norris v. Norris, 50 Cal.App.2d 726, 735, 123 P.2d 847; Coleman v. Coleman, 23 Cal.App. 423, 426, 138 P. 362; Gay v. Gay, 146 Cal. 237, 240–241, 79 P. 885. Hence even though the attorney who tried the case, or defendant's previous attorneys, had remained in the action he or they would have been entitled to additional fees for prosecuting the appeal. The authorities cited by plaintiff are factually so different from the instant case that they cannot be considered as authority for denying defendant's application. In McBride v. McBride, 95 Cal.App.id 329, 213 P.2d 9, it was shown that the plaintiff wife had received approximately $40,000 from her husband within a period of five years and that he was not only without means to comply with such an order but was unable to pay his indebtedness then outstanding. In Perry v. Perry, 93 Cal.App.2d 720, 209 P.2d 847, a sufficient showing was made that the proposed appeal was not taken in good faith or with reasonable belief that it had merit, whereas in the instant case it was shown that the appeal is in good faith and on advice of her counsel that because the trial judge had coerced her to consent to a judgment which she did not desire a sufficient ground for the reversal of the judgment existed. The other cases cited by plaintiff are likewise distinguishable by reason of their factual background. The court erred in refusing to allow defendant a reasonable counsel fee on appeal.

The questions raised by defendant concerning the property awarded to plaintiff and as to other parts of the judgment may be left for determination on a retrial of the action.

The interlocutory judgment is reversed except as to that portion awarding counsel fees to defendant for the trial of the action, and as to that portion of the judgment it is affirmed. The trial court is directed to allow defendant to amend her pleadings so as to pray for such relief as she may desire. The order denying attorneys' fees on the motion for a new trial is affirmed. The order denying defendant's application for attorneys' fees for prosecuting the appeal is reversed with directions to allow a reasonable sum therefor.

FOOTNOTES

1.  The term ‘invasion rights' refers to plaintiff's right to withdraw each year portions of the corpus of trusts from the income of which he received periodic payments.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.