Kellett v. Kellett

CURTIS, J.

This is an appeal from an order denying appellant’s application for costs on appeal, attorney’s fees and alimony

pendente lite.

Plaintiff brought an action for divorce, and judgment therein was granted on the default of the defendant failing to answer. A property settlement between the parties was agreed upon, and this agreement was incorporated in and made a part of the interlocutory decree of divorce. Thereafter the plaintiff, who is the appellant herein, moved to set aside said interlocutory decree and property settlement under section 473 of the Code of Civil Procedure. This motion was denied, and on appeal the order of denial was affirmed.

(Kellett

v.

Kellett,

110 Cal. App. 691 [294 Pac. 755].) After the affirmation of said order by the District Court of Appeal, the defendant in said action made application for a final decree, which application plaintiff opposed. Said application, together with plaintiff’s objection thereto, came on for hearing, and was decided adversely to plaintiff. Plaintiff made a motion for a new trial and while the same was pending applied to the court for costs and attorney’s fees for the prosecution of said motion and for support and maintenance. Upon the hearing of that application, the court ordered defendant to pay plaintiff the sum of $200 as and for attorney's fees and costs of obtaining certain portions of the transcript to be used on said motion for a new trial. From this order the defendant appealed, and our information is that that appeal is now pending before the District Court of Appeal of the Second District. Notwithstanding that appeal, which stayed the order of the court directing defendant to pay said sum of $200 to plaintiff, plaintiff prepared and presented her motion for a new trial, which motion the court denied. From the order denying this motion the plaintiff

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has appealed, and this appeal, as we are informed, is now pending before the District Court of Appeal of the Second District. After the taking of this appeal from the order denying her a new trial, the plaintiff moved the trial court for an order for attorney’s fees, costs and alimony pending said appeal, said attorney’s fees and costs to apply both for services and expenses of plaintiff in her appeal from said order denying her a new trial and in resisting defendant’s appeal from the order directing him to pay plaintiff said sum of $200. The court denied this motion of plaintiff for attorney’s fee, costs and alimony, and plaintiff appealed from .the order denying said motion. This appeal is now before us, and is the only matter which we have to consider at this time.