Wittman v. Superior Court

KNIGHT, J.

The Superior Court in and for San Mateo County granted petitioner’s husband, C. William Wittman, Jr., an interlocutory decree of divorce upon the ground of extreme cruelty. There are no children, the issue of the

[736]

marriage; and in said decree it was adjudged that the respective parties separately owned certain personal property, described therein, and that petitioner be awarded $3,500 as and for her share of the division of the community property. From said decree petitioner appealed to the Supreme Court, and pursuant to the provisions of section 953a of the Code of Civil Procedure made request for a transcript. Thereupon she obtained an order, based on affidavit, directing that her husband show cause why he should not be required to pay her the following sums of money: $272 to cover the cost of preparation of the transcript on appeal; $150 for the cost of printing the briefs; $500 as attorney’s fees for services in presenting the appeal; and $150 a month for her support during the pendency of the appeal. Upon the hearing of the order to show cause the trial court denied petitioner's application for such allowances. She then instituted the present proceeding in

mandamus

in this court to compel the superior court and the judge thereof to make an order directing her husband to pay to her such sum or sums of money as may be reasonable and proper for the purposes above mentioned. In response to the alternative writ respondents filed a demurrer; also an answer wherein certain allegations of the petition are denied, and facts are alleged showing the proceedings had up to the making of the trial court’s adverse order.

The law is well settled, as petitioner concedes, that the right of a defeated wife to prosecute at the husband’s expense her appeal from a judgment granting the husband a divorce, is not an absolute right; that the matter of granting alimony and costs pending appeal rests in the sound discretion of the trial court, and that therefore its action denying an application therefor will not be disturbed save when it clearly appears that such discretion has been abused.

(Stewart

v.