LUCACHEVITCH v. LUCACHEVITCH (1945)

This is a companion appeal to Civil No. 14711, 159 P.2d 688. Defendant took an appeal from an order modifying a decree of divorce with respect to the custody of a minor child and requiring him to pay attorney's fees and costs to the wife in the proceeding in the trial court. After that appeal was taken, upon application of plaintiff, which was opposed by defendant, the court ordered defendant to pay the sum of $750 as attorney's fees and the sum of $100 court costs on the appeal. Defendant has appealed from this order.

The sole point made for reversal is the one urged upon the appeal from the order of modification, namely, that by the interlocutory decree, in which was incorporated a property settlement agreement of the parties, and in accordance with the agreement, it was provided that all attorney's fees and costs incurred in any proceeding in the case respecting the enforcement of the agreement or decree or rights of custody of the minor child should be paid by the party incurring the same. For reasons which we stated in our opinion upon the other appeal, the provision of the decree relied upon by defendant must be held ineffective to deprive the court of the discretionary power to order the payment of attorney's fees by defendant. It is not contended that the amounts allowed were excessive.

The order is affirmed.

SHINN, Justice.

DESMOND, P. J., and PARKER WOOD, J., concur.