WILSON v. WILSON (1948)

Defendant appeals from two judgments: (1) A judgment after hearing an order to show cause arising from a proceeding reviewed by this court between the same parties, Wilson v. Wilson, 76 Cal.App.2d 119, 172 P.2d 568; and (2) A judgment for counsel fees for services rendered on the hearing to show cause.

The appeal in the above cited case was from an interlocutory decree of divorce in favor of the wife, in which she was awarded, 76 Cal.App.2d page 122, 172 P.2d 570, ‘an undivided one-half interest in the former residence of the parties, together with the sole right to the use and occupancy of the same, awarded her all the furniture and contents of the home, awarded her certain art objects created by her after marriage, awarded her $500 a month alimony, ordered the husband to discharge all community bills contracted prior to the filing of the complaint in the amount of $4,829, ordered the husband to pay all federal and state income taxes levied against the wife up to January 1, 1945, and granted to the wife's lawyer attorney's fees in the sum of $1,500.’ The order provided, 76 Cal.App.2d pages 132, 133, 172 P.2d 376:

‘Justice will best be served by striking from the decree all words presently disposing of the community property and inserting words to the effect that in the final decree the parties are entitled to have assigned to the parties specified the portions of the community property enumerated in the decree. Prout v. Prout, 73 Cal.App.2d 715, 167 P.2d 1. The plaintiff's right of occupancy pending this appeal is not challenged and is not affected by this modification.

‘For the foregoing reasons finding No. V is stricken from the findings; the interlocutory decree is modified by striking therefrom all words presently disposing of the community property and inserting words to the effect that upon the entering of the final decree the parties are entitled to have assigned to them the portions of the community property mentioned in the decree. As so modified the judgment is affirmed as of the date of its entry; plaintiff to recover her costs on this appeal.’

There may be some confusion as a result of certain orders made by judges of the superior court subsequent to filing the remittitur in the cited case, but the only matters pertinent on the present appeals are the two subjects heretofore stated. After the remittitur was filed, a final decree and subsequently a ‘nunc pro tunc’ final decree appear of record. The merit of any other order, from which a separate appeal is pending, may not be passed upon in the present appeal. The question of the other orders is mentioned because at the outset of the present hearing defendant objected: ‘We make the objection again for the record so that there can be no question of waiver or estoppel; that the Court, in view of that final decree, is not justified in going into these matters at this time. I am merely saving my position on that, and that is the same objection I made, as your Honor will recall, when I paid that money in the Court. We want to save our rights in that respect under the final decree.’

In the body of the cited opinion it was stated, 76 Cal.App.2d pages 127, 128, 172 P.2d 573:

‘The next contention of appellant relates to the finding in reference to the community bills. In reference to these bills, the court found that upon the date the complaint was filed there were community debts totaling $4,829 and that such community debts should be paid by defendant.

‘The facts in reference to the bills did not come to light until the last day of the long trial. At that time the trial judge was making an oral announcement of his conclusions. Counsel for plaintiff called the attention of the court to the fact that his client was being harassed by creditors of the community, and that certain utility and repair bills that the court had ordered defendant to pay had not been paid. He also called attention to the fact that his client was being sued for repairs to the house, that defendant had evaded service in that action, and that there was danger the house might be sold to satisfy a small mechanic's lien. These bills were ordered paid by the defendant and no challenge is made as to that portion of the decree.

‘Defendant does not contend that he is not liable for the bills incurred by the parties before the date fixed in the findings, nor does he urge that the trial court did not have the power to make an order requiring him to pay such bills. The sole point urged by him as to these bills is that there is no evidence in the record as to the amount of such bills, to whom they are owed, or their nature.

‘It is true that the list of such bills, although discussed in open court, was not formally introduced into evidence, but this failure to introduce such a list does not require a reversal or modification. The defendant can suffer no injury because of this fact. As between the husband and wife the court determined that the wife should be held harmless for such bills not to exceed $4,829. Before the defendant can be held liable on these bills so far as the wife is concerned she must show that the debts were incurred prior to January 19, 1942, and that the total amount does not exceed $4,829. If disputes arise between the parties in the future over whether a particular bill was a community bill, and whether it was incurred prior to the date the action was filed, such disputes may be easily determined by the trial court.’

After hearing an order to show cause the trial court in the present proceeding made certain findings and conclusions of law and entered judgment ‘covering certain bills' as follows: ‘Ordered, adjudged and decreed as follows: 1. Defendant shall fully pay and discharge all of the debts or obligations hereinafter set forth, and also set forth in paragraph 1 of the Findings of Fact heretofore rendered, made and filed, to the persons or business associations named hereinafter, upon receipt from said persons or business associations named, of a full release and discharge running to defendant and releasing defendant from any and all obligations to said persons and business associations, and defendant shall file satisfactory proof with this Court of such payment or such tender of payment, within thirty days from the date of the entry of this Judgment. Said debts or obligations mentioned above, and the persons or business associations mentioned above, and set forth in paragraph 1 of the aforesaid Findings of Fact, are as follows:

A separate judgment was filed whereby the attorneys for Mrs. Wilson ‘have and recover’ $500 ‘for services performed between the filing of the remittitur from the [previous] appeal * * * up to and including June 1, 1947.’

Defendant heretofore has charged plaintiff with failure to pay certain income taxes, a bill of Boscus for repairs, and a claimed obligation of $302. It appears that defendant had previously paid the Boscus and the $302 obligations.

Defendant places the following questions before this court: ‘A wife and husband separate and live separate and apart for more than a year. During that year, he fully complies with his agreement for her support during separation. She then files for and obtains a divorce. Can he be held responsible for the extravagant purchases made by her during the period they were living separate and apart?’ Whether the purchases were ‘extravagant’ is a factual question that was or should have been argued before the trial court. It is not a proper issue on this appeal.

The only matter before the trial court on the order to show cause was whether the bills heretofore referred to in the judgment were (1) such bills as were contemplated in the interlocutory decree and in 76 Cal.App.2d 119, 172 P.2d 568, by reference only to the total amount, and (2) whether such alleged obligations are now enforceable.

Whatever expression—‘community bills' or ‘community debts'—may have been used in this case, the defendant was directed to pay a community bill if it was in fact a community debt (Wilson v. Wilson, supra, 76 Cal.App.2d pages 127, 128, 172 P.2d page 573), and if any disputes arose they should be determined by the trial court.

Plaintiff testified on direct examination as to the existence of the listed debts. They were all incurred during a period of separation. Plaintiff also testified that defendant did not send her money after the separation and that she borrowed money for her maintenance and incurred the listed debts because she had no funds. Whether the expenditures were extravagant presents a question of fact. Defendant testified that he had notified some of the listed creditors that he would no longer be responsible for Mrs. Wilson's accounts.

In respect to the last contention defendant seeks to invoke the provisions of the statute of limitations. Code Civ.Proc., secs. 337(2), 338(1) and 339. Defendant calls attention to the use of the words ‘hold harmless,’ and suggests that in the event the creditors should sue Mrs. Wilson she should be held harmless by pleading the statute of limitations. ‘Hold harmless,’ as used, means that under no circumstances was the wife to be required to pay the bills. The interlocutory decree provided, and it was held in 76 Cal.App.2d 119, 172 P.2d 573, ‘that upon the date the complaint was filed there were community debts totaling $4,829 and that such community debts should be paid by defendant.’ (Emphasis added.) These bills were incurred by Mrs. Wilson. It does not appear that she desires to raise the statute of limitations, with its resultant adverse effect upon her credit. The defense is personal to her and may not be advanced by defendant. Moreover, the prior decision of this court directing the defendant to pay the bills accruing during a specified time is res judicata that those bills should be paid and may not be relitigated. The affirmance of the judgment in so for as it directed that defendant should pay the bills which accrued within a specified period is res judicata.

The general rule is that in cases involving the dissolution of marriage the trial court may order payment of attorney fees during the pendency of and necessary for the prosecution of the action. Attorney fees have been allowed in proceedings to collect alimony provided by the divorce decree. Gebhardt v. Gebhardt, 69 Cal.App.2d 723, 160 P.2d 177. In the present case it may be assumed that the final disposition of the case rested upon the question whether certain ‘bills' were in fact ‘debts,’ and who was responsible for their payment. The proceedings were not at an end. If plaintiff was liable it made a difference in the amount of alimony placed at her disposal. In the Gebhardt case, supra, 69 Cal.App.2d page 728, 160 P.2d 180, the court said: ‘The last remaining point raised on this appeal is whether, as urged by appellant, the court abused its discretion in allowing additional attorney fees in the sum of $100. In McClure v. McClure, supra, 4 Cal.2d [356] at page 362, 49 P.2d [584] at page 588, 100 A.L.R. 1257, we find the following: ‘Where the divorced husband has not been released permanently from the obligation to pay alimony, the court may allow the wife costs and attorney's fees to prosecute or defend an appeal from an order of modification * * * on the theory that where the power to modify continues, the action is still pending under section 137 of the Civil Code, which authorizes the court to require the husband to pay money to enable the wife to prosecute or defend the action.’ We believe the principle there stated is broad enough to cover the situation presented in the instant case, and in Wilder v. Wilder, 1932, 214 Cal. 783, page 785, 7 P.2d 1032, 1033, where the court refused an allowance, we find the court stating. ‘* * * the whole matter rested in the sound discretion of the trial court. [Case cited.] * * * A clear abuse of discretion only will justify its [the reviewing court's] interference with the judgment of the trial court.’'

The judgments are and each of them is affirmed.

WARD, Justice.

PETERS, P. J., and BRAY, J., concur.