Beaulac v. Beaulac

BARTLETT, J. pro tem.

This is an action for divorce. At the time of the trial it was announced in behalf of plaintiff that no evidence would be introduced in support of the complaint. Therefore, the case proceeded to trial upon the issues raised by the cross-complaint filed by the wife and the answer thereto. An interlocutory decree was granted to the wife on the grounds of extreme cruelty and adultery. She appealed from the judgment insofar as it awarded her no alimony or attorney’s fees, and also from those portions of the decree which award her $80 per month for the support of the minor children and award to her husband $450 of her separate property.

In her opening brief, the appellant makes no mention of the question of the failure of the court to award her alimony, so we will not discuss that matter.

As far as appellant’s complaint that no attorney’s fees were granted to her is concerned, no application for attorney’s fees, was made before trial and there was no stipulation concerning them. The attorney’s fees asked for were strictly in payment for services rendered in the past. Under such circumstances, the court has no jurisdiction to make the award requested

(White

v.

White,

96 Cal. App. 765 [274 P. 990];

Smith

v.

Superior Court,

89 Cal.App. 177 [264 P. 573]).

Appellant urges that the court exceeded its power in awarding her as small a sum as $80 per month for the support of the two minor children for the reason that her husband in his answer to the cross-complaint admitted that $100 per month was a reasonable sum for their support. The cross-complaint alleges that the ages of these children were 6y2 and 2% years, respectively.

Between the time her husband filed the answer and the time of trial, his salary had been reduced from $400 per month to $300 per month with “take-home pay” of $270 per month. The amount which may be awarded for the support of children is within the reasonable discretion of the trial court

(Bancroft

v.

Bancroft,

178 Cal. 352 [173 P. 582] ;