IN RE: the MARRIAGE OF Chester R. and Isa N. KASPER.

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Court of Appeal, Fifth District, California.

IN RE: the MARRIAGE OF Chester R. and Isa N. KASPER. Chester R. KASPER, Petitioner and Appellant, v. Isa N. KASPER, Respondent.

Civ. 4587.

Decided: March 19, 1981

O'Neill & Woolpert and George B. O'Neill, San Luis Obispo, for petitioner and appellant. Lloyd E. Somogyi, San Luis Obispo, for respondent.



Following the trial court's “Judgment Supplementing Interlocutory Judgment” issued on February 7, 1977, appellant Chester R. Kasper filed and argued a motion for new trial. This motion was denied on April 13, 1977. On May 10, 1977, appellant filed a notice of appeal, the result of which was the affirmance of the judgment of the trial court in an opinion out of the Second District, In re Marriage of Kasper (1978) 83 Cal.App.3d 388, 147 Cal.Rptr. 821. Appellant then petitioned the California Supreme Court for reconsideration, which petition was denied on September 27, 1978. The remittitur of the Court of Appeal was filed with the San Luis Obispo County Superior Court on October 3, 1978.

On October 5, 1978, respondent Isa N. Kasper filed her memorandum of costs on appeal, which was not contested. On October 17, 1978, respondent filed her “Declaration in Support of Motion for Counsel Fees After Rendition of Judgment and for Counsel Fees on Appeal.” Hearing on the motion was set for November 3, 1978, and then continued to December 15, 1978, when the motion was granted awarding respondent attorney fees in the amount of $2550 for counsel fees rendered to respondent after entry of interlocutory judgment and on appeal.



Appellant contends that the motion for fees was untimely because it was made after September 22, 1978, the date the Supreme Court denied a hearing, hence the trial court acted in excess of its jurisdiction.

Respondent argues that the instant case is analogous to cases of subsequent related proceedings, for instance, proceedings after the final judgment of divorce wherein attorney fees may be awarded.

Both parties cite Civil Code, section 4370, subdivision (a) (hereinafter § 4370, subd. (a)), which provides:

“(a) During the pendency of any proceeding under this part, the court may order the husband or wife, or father or mother, as the case may be, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys' fees; and from time to time and before entry of judgment, the court may augment or modify the original award for costs and attorneys' fees as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding relating thereto. In respect to services rendered or costs incurred after the entry of judgment, the court may award such costs and attorneys' fees as may be reasonably necessary to maintain or defend any subsequent proceeding therein, and may thereafter augment or modify any award so made. Attorneys' fees and costs within the provisions of this subdivision may be awarded for legal services rendered or costs incurred prior, as well as subsequent, to the commencement of the proceeding.”

The crucial question before us is whether a request for fees on appeal can be acted upon if filed after the judgment on appeal is final. The answer to this question depends on the resolution of a question of statutory construction—whether the phrase “during the pendency of any proceeding under this part” includes within its scope a motion for fees on appeal filed after the appeal has become final.

We conclude that the applicable rules of statutory interpretation compel a negative answer.

We are mindful of our obligation to “ascertain the intent of the Legislature so as to effectuate the purpose of the law” (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672), and to reach a “reasonable result consistent with legislative purpose.” (Kusior v. Silver (1960) 54 Cal.2d 603, 620, 7 Cal.Rptr. 129, 354 P.2d 657.)

If the words of the statute seem clear, we should not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. We must interpret statutes “according to the usual, ordinary import of the language employed in framing them.” (In re Alpine (1928) 203 Cal. 731, 737, 265 P. 947; Chavez v. Sargent (1959) 52 Cal.2d 162, 203, 339 P.2d 801.)

Webster's Third New International Dictionary (1961), page 1669, defines the word “pendency” as the “state of being pending” and the word “pending” as “not yet decided.” Taking these definitions, we determine that the phrase “pendency of any proceeding” means while that proceeding remains undecided. The procedural meaning of “pendency” was briefly set out in In re Marriage of Coleman (1972) 26 Cal.App.3d 56, 60, 102 Cal.Rptr. 629, wherein the court stated:

“It was well settled law that, under the provisions of former section 137.3 of the Civil Code (which is substantially similar to the present section 4370) the phrase ‘during the pendency’ of any proceeding included many diverse proceedings growing out of the divorce action and arising after the entry of the final decree. (See See v. Superior Court (1961) 55 Cal.2d 279, 10 Cal.Rptr. 634, 359 P.2d 32; Lerner v. Superior Court (1952) 38 Cal.2d 676, 685, 242 P.2d 32.)1 Matters involving child custody, visitation and child support are among such proceedings.”

Footnote 1 reads:

“1 ‘Civil Code, section 137.3, enacted in 1951, 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 the cost of maintaining or defending the action and for attorney's fees.” Section 137.3 is a recodification of the first sentence of former Civil Code, section 137. It was settled under section 137 that the phrase therein, “when an action for divorce is pending,” embraced many diverse proceedings growing out of the divorce action and arising after entry of the final decree. [Citations.]’ (Lerner v. Superior Court (1952) 38 Cal.2d 676, 685, 242 P.2d 321.)”

Cases have looked to Code of Civil Procedure section 1049 to define pendency in construing section 137. (See, e. g., Bruce v. Bruce (1911) 160 Cal. 28, 116 P. 66, cited by appellant.)

In Bruce v. Bruce, supra, the court defined when an action is pending:

“Section 137 provides in express terms that ‘when an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.’ An action is pending ‘from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.’ (Code Civ.Proc., sec. 1049.) Following these provisions, this court has repeatedly held that the power to make an allowance to the wife for her support or to enable her to defend or prosecute the action is not exhausted upon the rendition of the judgment in the trial court, but continues during the pendency of an appeal.” (Id., at pp. 29-30, 116 P. 66.)

Similarly, in Wilson v. Wilson (1948) 33 Cal.2d 107, 114-115, 199 P.2d 671, the court held that a final decree of divorce with no appeal therefrom, does not terminate the trial court's power to award suit money. But it is significant that In re Marriage of Coleman, supra, 26 Cal.App.3d at page 60, 102 Cal.Rptr. 629, and Wilson v. Wilson, supra, make allowance for fees where, after final judgment or appeal, a “subsequent proceeding” has been initiated in the form of an order to show cause proceeding, to enforce or defend against issues involving modification or enforcement of custody, visitation, spousal and child support issues, payment of debts or division of property questions. Section 4370, subdivision (a), clearly authorizes the award of attorney fees for these types of proceedings.

However, neither appellant nor respondent cite any authority addressing the question of when application for attorney fees on appeal must be made, and there does not appear to be any. The issue clearly does not fall into the category of enforcing or defending against matters such as custody, spousal support and visitation rights over which the court usually retains continuing jurisdiction even though the judgment of dissolution becomes final. Again, we must turn to interpretation of section 4370, subdivision (a), according to the plain language used therein. We cannot unearth concealed meanings which are not suggested by the statute (People v. Knowles (1950) 35 Cal.2d 175, 182-183, 217 P.2d 1, cert. den. 340 U.S. 879, 71 S.Ct. 117, 95 L.Ed. 639), nor can we “insert what has been omitted or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” (Code Civ.Proc., § 1858.)

Here, the ordinary import of the language used in section 4370, subdivision (a), discloses that a request or motion for fees incident to a proceeding, may be made prior or subsequent to the commencement of the proceeding or at any time during the pendency of any proceeding. The general provisions of section 4370, subdivision (a), reveal a legislative intent to allow a motion for fees prior to or during the pendency of “any proceeding under this part.” There are no special or particular provisions in the statute referable to fees after a proceeding is no longer pending, hence there is no inconsistency to resolve pursuant to Code of Civil Procedure section 1859. 1

We are aware of the philosophy of section 4370, subdivision (a), “that a party in a domestic relations action should not be deprived of the ability to bring or defend an action solely upon the basis of financial inability when the other party has adequate financial resources upon which to base an award.” (In re Marriage of Pollard (1979) 97 Cal.App.3d 535, 538-539, 158 Cal.Rptr. 849.) We share this philosophy; but settled principles of statutory construction cannot be set aside by this court in order to achieve a desirable aspect of that philosophy. An appropriate solution lies with the Legislature, not the courts.

The order appealed from is reversed.



1.  Code of Civil Procedure, section 1859, provides:“In the construction of a statute the intention of the Legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.”

ALLEN,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.


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