GIDEON v. GIDEON

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

Marion B. GIDEON, Plaintiff and Respondent, v. George H. GIDEON, 3d, Defendant and Appellant.*

Civ. 21756.

Decided: November 26, 1956

George H. Gideon, 3rd, in pro. per. Hahn, Ross & Saunders, Los Angeles, for respondent.

In respondent's divorce action an order pendente lite was made granting attorney fees of $275 to the wife's attorney. Thereafter, an interlocutory divorce in the wife's favor was set aside on a motion for a new trial on the ground that the trial court failed to make finding on the material issues of provocation and recrimination. Thereafter, on an order to show cause in re modification, an additional order for attorney fees of $300 was made which the appellant husband refused to pay, whereupon a writ of execution was issued. The defendant's motion to quash the execution was denied, and it is from this order that defendant appeals.

It is appellant's contention that the trial court's order modifying the original attorney order, ‘was in excess of the court's jurisdiction’, for the reason that ‘the original pendente lite order becomes merged in the Interlocutory Judgment and is thereafter void’, the interlocutory judgment having been set aside on a motion for new trial.

Section 137.3 of the Civil Code provides that ‘During the pendency of any action * * * for divorce * * * the court may order the husband * * * to pay such amount as may be reasonably necessary * * * for attorney's fees; and from time to time and before entry of judgment * * * the court may augment or modify the original award * * *. In respect to services rendered after the entry of judgment, * * * the court may award such costs and attorney's fees as may be reasonably necessary to maintain or defendant any subsequent proceeding therein, and may thereafter * * * augment or modify any award so made. * * * Any such order may be enforced by the court by execution’.

As said in the respondent's brief, ‘appellant's contention that the pendente lite order for attorney fees merges in the judgment would lead to an absurd result’, since, if the attorney fee was ordered paid in ten monthly installments, and judgment was entered within five months, ‘the result would be that the attorney would receive only one-half of his fee’. Such cannot have been the intent of the legislature.

In the instant case the vacation of the interlocutory judgment cannot be deemed to have invalidated the previous order made for the payment of attorney fees which, as in other cases, could be modified as required. Moreover, as respondent points out, the later order ‘was not solely for the second trial, but was for other services rendered’ by the wife's attorney, such as opposition to the motion for new trial, taking of depositions, etc.

Appellant further contends that ‘where the wife has lost the judgment granted to her, * * * due directly, and only to the lack of skill of her attorney (in drafting the findings) it would certainly seem somewhat of an imposition upon the husband to compel him to reward said attorney with even more fees for her lack of skill’. The appellant also argues that there was misconduct on the part of the wife's attorney, and that the trial court made no determination of this issue. This latter statement is not borne out by the record, for in granting the motion for a new trial Judge Praeger found that ‘The affidavits that have been filed do not show any irregularity in the proceedings'. In respect to the findings, as pointed out in respondent's brief, these ‘are actually the findings of the court and not the findings of an attorney’. There is no substantial merit in appellant's contentions, nor is any reversible error disclosed by the record.

The notice of appeal states that appellant also appeals ‘from the prior order of said court dated March 3, 1955’ ordering said defendant to pay $300 to the plaintiff's attorney. As noted in the respondent's brief, this order was entered March 7, 1955, while the notice of appeal was filed September 1, 1955, more than the 60 days allowed for the filing of an appeal.

The order of July 7, 1955, denying the motion to quash execution is affirmed, and the attempted appeal from the order of March 7, 1955, is dismissed.

DORAN, Justice.

WHITE, P. J., and FOURT, J., concur.

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