CHIYOKO IKUTA v. SHUNJI IKUTA (1952)

On December 7, 1948, plaintiff filed her second action for divorce subsequent to an agreement for reconciliation and division of the community property. The interlocutory judgment in that action was filed December 14, 1950. Plaintiff was awarded a divorce on the ground of extreme cruelty; custody of the three minor children; $200 per month for their support. The property agreement was approved; the joint tenancy and separate property of both parties was listed, and the community property was divided equally between them.

On January 22, 1951, plaintiff wife appealed from portions of said judgment.

Thereafter upon hearing of an order to show cause which issued therein, the court on February 23, 1951, ordered defendant husband to pay during the pendency of the appeal, $200 per month for support of the children. Also, $1,000 for costs and $3,000 counsel fees for prosecution of the appeal, the $4,000 to be withdrawn from the joint account of the parties on deposit in a bank in Honolulu.

The court further ordered ‘that in the event of the affirmance of the said Judgment from which the appeal is taken, the said $4,000.00 shall be charged against the plaintiff, Chiyoko Ikuta, and in the event that the said plaintiff prevails in the said appeal, the said sum of $4,000.00 shall be charged against the defendant, Dr. Shunji K. Ikuta.’

On March 7, 1951, defendant filed notice of the instant appeal from those portions of the order of February 23, 1951, which have reference to payment of costs and attorneys' fees pending appeal from the judgment of divorce.

In the meanwhile, to-wit, on October 11, 1951, the appeal from the interlocutory judgment of divorce was dismissed by this court pursuant to the request of Chiyoko Ikuta, the appellant in that action.

As a result, costs and attorneys' fees are chargeable to Chiyoko Ikuta, respondent herein, and the questions raised by this appeal have become moot. This for the reason that they no longer present an existing controversy for decision by this court. See Wilson v. Los Angeles County, etc., Comm., 112 Cal.App.2d 450, 246 P.2d 688.

For the reasons stated, the instant appeal is dismissed.

DRAPEAU, Justice.

WHITE, P. J., and DORAN, JJ., concur.