WOOD, J. I dissent.Plaintiff and defendant stipulated in writing on June 30, 1936, that the court might retain jurisdiction to determine all matters regarding community property and the division thereof, and “all matters relating to support and maintenance as between them, and that the hearing of any such matters may be brought on by motion of either party at any time upon previous written notice to the other party, as provided by law”; and that such stipulation might be incorporated in the final decree of divorce. (Italics added.) The final decree, entered February 26, 1937, included that stipulation. On June 30, 1945, plaintiff filed a “Petition for Award of Alimony, Division of Community property, Allowance of Expenses of Litigation, Attorneys’ fees, and Other Relief.” On that same day the court made an order to show cause why the defendant should not be required to pay plaintiff “reasonable sums for attorneys’ fees and court costs, during the pendency of this action.” The proceeding before the trial court, which is the subject of review on this appeal, was upon that order to show cause.
I agree with the majority opinion wherein it is indicated that a trial court possesses power, under statutory provision, to make an award for temporary support without an application therefor. In my opinion, the trial court herein had power, by virtue of said stipulation and the reservation of jurisdiction in the final decree, to make an award for support [155]of plaintiff, whether the award he regarded as temporary support or as compensation for the wrong done to plaintiff. Further, in my opinion, the statements made before the court at the time of the hearing on July 12, 1945, by Mr. Lewinson, the attorney for defendant, were such that the trial judge was led to believe that defendant conceded that the matter of deciding on the merits whether an award for support should be made was properly before the court. The attorney for defendant stated at the time of said hearing (near the beginning—within the first 65 pages of the 404-page transcript) : “My client, who is a lawyer, has instructed me to concede that the reservation in the final decree, having been by stipulation, gives the Court jurisdiction to award alimony in this proceeding, and gives the Court the same jurisdiction that it would have in an independent proceeding for an accounting of the former community property; also that, if he is enabled to confer jurisdiction by waiving the provisions of Section 472 [142], Code of Civil Procedure [Civ. Code], to which I shall refer presently, he desires to do so as to alimony, but not as to counsel fees or suit money; also to say that, if jurisdiction to award alimony does not exist, he will continue to pay reasonable support money as he has in the past, on being advised of plaintiff’s separate income and estate.” (Italics added.) He also said “. . . on the basis of Section 142 [Civ. Code] alone, the Court is not empowered to allow alimony or support out of the separate estate of the defendant, but as I have said, if the defendant is able to confer jurisdiction by consent to make an award of alimony, he is willing to do so, and does do so, but he does not make such, or give 'such consent as to the award of counsel fees or expense money or suit money or accounting fees, cost of taking depositions and things usually classified under ‘suit money.’ ” (Italics added.) He also said: “I think I made it clear that while we have conceded, if we are in position to confer jurisdiction that way, the right of the court to allow alimony and support out of the defendant’s separate estate, but not attorney’s fees, or suit money or expense money. That is with reference to the contention under Section 142 of the Civil Code.” He also said: “That this proceeding is utterly unnecessary, because at all stages of the dealings between the parties prior to the bringing of this proceeding, the defendant conceded, in writing, his liability to pay some sum to the plaintiff. . . .” (Italics added.) In my opinion, those statements were calculated to indicate to the trial judge that the defendant, in view of his stipula[156]tion as to the reservation of jurisdiction, did not intend to rely on any technical construction of the stipulation or statutory provisions, but on the contrary wanted a broad and liberal construction given thereto to the end that plaintiff should not be prejudiced by reason of the fact that she had entered into the stipulation and as a result thereof had closed the divorce part of the action before the community property and support questions were settled. As indicative of such intention, the attorney for defendant said: “I do not want to handle this in a technical manner.” He also said: “I am making the broadest concession, a far greater concession than I think is justified by the law, but I am under the instructions of my client who is a lawyer, that the matter of alimony is kept open indefinitely, just as though alimony had been awarded in the decree; but as to community property' it is not kept open indefinitely. ...” (Italics added.)
On this appeal the attorney for defendant (appellant) asserts that his statements before the trial court regarding alimony did not relate to temporary alimony, but related to permanent alimony. It is to be noted that in the first statement above quoted the attorney said that the reservation and the stipulation gave “jurisdiction to award alimony in this proceeding(Italics added.) It is also to be noted that in the last statement above quoted the attorney said: “This proceeding is utterly unnecessary, because . . . prior to the bringing of this proceeding, the defendant conceded, in writing, his liability to pay some sum to the plaintiff.” (Italics added.) The effect of appellant’s argument is that by the use of the words “this proceeding” he was not referring to the order to show cause proceeding which was then before the court, but was referring to the whole proceeding which was initiated by the petition that had been filed—the trial of the ultimate issues which, it was contemplated, would be had at a later date. Appellant asserts that the trial court did not construe his attorney’s statement as a voluntary submission of the right to temporary support. He refers, in support of that assertion, to instances during ■ the hearing when the trial judge remarked that the only issue was that of counsel fees and costs. Those remarks do not indicate necessarily that the judge believed that the matter of making an award for support pending the trial was not before him. It is to be remembered that the attorney for defendant had made assertions to the effect that the court had jurisdiction to award alimony in this proceeding, but did not have jurisdiction to award counsel [157]fees and costs. In view of those assertions, the trial judge might have concluded that since it was conceded that the court had jurisdiction to award alimony in that proceeding the only issue or contest as to jurisdiction was the matter of counsel fees and costs. Even if those remarks of the judge should be interpreted to mean that at the time he made them (on and prior to p. 63 of the transcript) he did not believe the matter of support was before him, it appears from another remark made by him at a later time in the proceeding (on p. 77 of the transcript) that he then believed that the matter of support was before him. At such later time, he said: “Let me make this suggestion, since you concede that jurisdiction lies with reference to the alimony factor, perhaps you can stipulate: The wife undoubtedly would be entitled to something, that is assuming the necessity existed. ’ ’ Thereupon the attorney for defendant said: “Yes, if the necessity existed, certainly.” Irrespective of what interpretation should be placed upon the previous remarks of the judge, that remark of the judge and counsel’s reply thereto indicate that they were then proceeding upon the theory that, since jurisdiction as to the alimony factor was conceded, the wife was undoubtedly entitled in that proceeding then before the court to an award for support if necessity existed. Since the matter of necessity is an essential inquiry in considering an award for temporary support and is not an essential inquiry in considering an award for permanent support, it would seem that the judge and the attorney were not then discussing permanent support. The attorney for defendant did not explain at the hearing of the order to show cause that his reference therein to “this proceeding” did not mean the proceeding then before the court, but that, on the contrary, it meant some other proceeding that might be had at a later date. Furthermore, it is established by the written opinion of the trial judge that he considered that, by reason of the stipulation and reservation referred to by the attorney, the question of support was before him. In that opinion, after quoting the written stipulation of the parties and the provision of the final decree regarding the reservation of jurisdiction, the judge said: "The plaintiff now comes into court and asks for a determination of the issues over which the court has retained jurisdiction, viz., her right to support pending the action, and an allowance for counsel fees and for costs. This is not an action subsequent to the entry of a final decree of divorce where all of the issues made by the pleadings have been determined, but is a prose
In any event, regardless of whether or not the statements of the attorney for defendant led the court to believe that the defendant conceded that the matter of support was before the court for decision in the proceeding then before the court, the court had power by virtue of said stipulation and the reservation of jurisdiction to make an award for support of plaintiff. In the case of Scheibe v. Scheibe, 57 Cal.App.2d 336 [134 P.2d 835], there was no allegation or evidence regarding alimony and the trial court made an order for support of the wife. On appeal therein, the court said at page 342: “Appellant’s final contention is that in the absence of allegations or evidence relating to the matter of alimony the trial court was without legal authority to order appellant to pay to respondent any sum of money, or to subject his half of the joint tenancy account to a lien for the payment thereof. This contention is not sustainable. The award was made by the trial court in the exercise of the authority conferred by section 139 of the Civil Code ... As pointed out in some of the earlier decisions . . . [citations] the award made under said section 139, properly speaking, is not alimony, nor is it merely a substitute for the wife’s interest in the community or separate property of the husband. It is an allowance authorized to be made by way of compensation for a wrong done to the wife, and in that sense is regarded as a penalty imposed upon the husband.” Appellant argues, however, that said section 139, referred to' therein, relates only to the allowance of permanent alimony, and that the trial court herein, in awarding temporary sup[159]port, was not acting under the provisions of section 139 but was acting under section 137 of the Civil Code which is the authority for allowing temporary support. In my opinion, under the unusual circumstances of the present case, it is not important that it be determined whether the trial court herein acted under section 139 or section 137. The present case is not the usual divorce case where a wife before a divorce case is tried and before it has been decided which party is at fault, seeks support pending the trial, or where at the time of granting the divorce to the wife an order is made for her support. Before the interlocutory decree was made herein, and while the divorce issue was still pending, the court certainly could have awarded temporary support to the wife, under section 137, if the necessity existed. At the time of granting the interlocutory decree herein, when it had been determined that the defendant was at fault, the court certainly could have awarded support to the wife, under section 139, irrespective of whether necessity existed, by way of compensation for the wrong done to the wife. This is an unusual ease. Here, only the divorce issue was tried at the time the interlocutory decree was granted, and the parties had stipulated prior thereto that the interlocutory decree might provide (and it did provide) that the court retain jurisdiction to determine all matters relating to community property and support, and that the hearing of any such matters might be brought on by motion of either party at any time. Further in this case, by written stipulation, filed after the interlocutory decree had been granted and after it had been decided that the defendant was at fault, the parties agreed that the court in its final decree might retain such jurisdiction to determine ‘ all matters ’ ’ relating to community property and support. The final decree provided that such jurisdiction was retained.
In the case of Lamborn v. Lamborn, 190 Cal. 794 [214 P. 862], the final decree of divorce awarded the wife $45 per month, and after that decree became final the trial court, on the motion of the husband, modified the decree by decreasing the amount of alimony to $35 per month. The wife in that ease appealed from the order of modification, and asked the trial court to make an allowance for attorney’s fees and costs on the appeal. The trial court therein awarded such fees and costs, and the husband appealed from that order and contended that the trial court had no jurisdiction to award such fees and costs on such an appeal. The court therein stated that section [160139] of the Civil Code provided that the award to the wife for her support during her life, made in the final decree of divorce, may be modified from time to time, and the court therein stated that section 137 of the Civil Code provided that during the pendency of the divorce action the court may require the husband to pay as alimony any money necessary for the prosecution of the action and for support. The court therein also said, at page 795: “It matters not whether we consider the allowance of costs and attorney’s fees to the wife to enable her to appeal from the order modifying the decree as an additional allowance to her for her support as authorized by section 139 of the Civil Code, made after the final decree of divorce, or whether we consider that the divorce action is pending within the meaning of section 137 of the Civil Code, so long as the court retains power to modify the terms of the decree. ...” The court said further therein at page 795: “It is true that an ordinary action is deemed to be pending only until the appeal from the judgment is determined or until the time for an appeal has passed . . . but this general provision of the statute with reference to ordinary judgments is modified in the case of divorce actions by the provisions of the code authorizing the modification of an award for alimony at any time after the final decree is entered.” The court said further therein at page 796: “Whether we regard the allowance to the wife as money necessary for her support, the allowance of which is authorized by section 139 of the Civil Code, or as money paid to her as counsel fees and costs during the pendency of the divorce action, it is clear that the court is authorized to make such an allowance to the former wife.” In the case of McClure v. McClure, 4 Cal.2d 356 [49 P.2d 584, 100 A.L.R. 1257], the court cited with approval the Lamborn case, supra, and stated at'page 362: “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, either on the theory that such an award is an additional allowance for support made under section 139 of the Civil Code, or 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.” (Italics added.)
By the stipulation of the parties in the present case it was intended that the plaintiff should not suffer any prejudice [161]in any respect regarding any matter of support, either under section 137 or section 139 or at all, if she obtained a decree of divorce before the matter of support was settled. By that stipulation it was clearly intended that the action should be regarded as still pending, even after the divorce issue was determined, as to any matter relating to community property or support, and that plaintiff should not encounter any technical objections on the part of defendant, particularly as to legal procedure under section 137 or section 139 of the Civil Code, in attempting to proceed pursuant to the stipulation. In my opinion, in view of the stipulation of the parties, the reservation of jurisdiction in the decree, the statements of defendant’s attorney before the trial judge, the provisions of sections 137 and 139 of the Civil Code, the decision in Scheibe v. Scheibe, supra, 57 Cal.App.2d 336, 342, and the decision in Lamborn v. Lamborn, supra, 190 Cal. 794, 795, the trial court here had power to award support whether the award be regarded as temporary support until the hearing pn the merits concerning the issues as to property and permanent support, or whether it be regarded as a modification of the final decree to the extent of awarding compensation to the wife for the wrong done until the hearing on the merits.
In his written opinion the trial judge said properly and accurately: “The right to share in the community property as well as to be supported out of it is of as great importance to the wife in most cases as is her right to have the marriage dissolved. They form an important part of the action, and in this case these issues are still pending. The denial [by the defendant] of the existence of a community estate does not detract from the importance of the issue, and where, as here, there appears to be some community estate, and also a commingling of community property by the husband with his separate estate an allowance should be made,” and that “While a wife is entitled to support out of the community property where she is not at fault, she is not limited in such support to the community property. The award may be made by way of compensation for a wrong done (Scheibe v. Scheibe, 57 Cal.App.2d 336 [134 P.2d 835]). Since the decree of divorce has been entered here, any award for support, even though temporary, must partake of the latter character.” It therefore appears that the trial judge considered that, since it had been decided that defendant was at fault, the award for support herein partook of the character of compensation [162]for a wrong done. If an award for support is made on the basis that it is compensation or damages or a penalty for a wrong done, then the question as to whether there was necessity for support is not material. The attorney for defendant evidently was of the opinion at the hearing that an order for support could be made only on the basis of necessity. He argued at length to that effect. Also, in a letter to plaintiff, during negotiations concerning payments for her support, he asserted “that not only Mr. Loeb’s ability to pay, but your needs are involved.” (Italics added.) An important point in this case is that the trial court had power to make an award for support on the basis that it was compensation or damages or a penalty for the wrong done.
It appears, however, that the trial judge also determined there was necessity for an award for support. In my opinion the evidence supported that finding. The question before the trial court, under a consideration of the matter of necessity for support, was not whether it was possible for a person to live or exist on the separate income of the plaintiff. It was a question as to plaintiff’s accustomed mode of living. From the time the interlocutory decree of divorce was granted in June, 1935, until December, 1938, the defendant voluntarily paid to plaintiff for her support $850 a month. During that period of time plaintiff received $200 per month from a trust fund created by her father, and during a part of that time (until December, 1937) she received $125 per month as rental for certain real property. In other words, at the time the interlocutory decree was granted, and thereafter for approximately two years, her income was $1,175 per month. Defendant knew at the time he voluntarily paid her $850 per month that, in addition thereto, plaintiff was receiving $325 per month. It is reasonable to conclude that during that period of time the defendant considered that the amount necessary for plaintiff’s support, according to her accustomed mode of living, was $1,175 per month. During that period the cost of living was considerably less than it was at the time of the hearing on the order to show cause herein. After said period of time defendant voluntarily paid to plaintiff for her support, as follows: from December, 1938, to March, 1942, $650 per month; from March, 1942, to August, 1944, $500 per month; from August, 1944, to December, 1944, $350 per month. Although he reduced his payments, as above shown, he told plaintiff at the time the reductions were made that the reductions were temporary only. When plaintiff’s mother died in May, 1944, [163]the trust which had been created by plaintiff’s father terminated, and plaintiff’s income increased from $200 to $675 per month. Her income from other sources at the time of such increase was about $100 per month. In other words, after the death of plaintiff’s mother, plaintiff’s income, including the $350 paid by defendant, was about $1,125 per month. Defendant had been one of the trustees of that trust, and presumably he knew approximately the amount of her income therefrom after the termination of the trust. It is reasonable to conclude that during the latter part of 1944, when defendant was voluntarily paying $350 per month for the support of plaintiff, he considered that the amount necessary for plaintiff’s support, according to her accustomed mode of living, was at least in excess of $1,100 per month. It seems that the defendant recognized that, according to the mode of living which he established for her during their marriage, an amount in excess of $1,100 per month was a reasonable amount for her support. It is to be noted that the award of $500 per month, made by the trial court herein, and her income of $775 per month from her separate property, made a total sum per month that is approximately the amount which defendant has regarded, over a period of several years, as a proper amount for plaintiff’s support according to her accustomed mode of living.
In December, 1944 (a few months after the trust ended), defendant quit making payments to her. Her interest in the trust property after the termination of the trust was of the approximate value of $200,000. In addition thereto, she has war bonds of the maturity value of $20,000, a savings account of $2,200, and a checking account of $150. (She also has an interest in her mother’s estate, but the amount of her interest is not shown—the appraised value of the estate is $116,442.81.) During the first half of 1945 (preceding the hearing herein in July, 1945) her expenses per month, including income taxes, were approximately $625, which amount was considerably less (about $500 less) than the amount which defendant had recognized as a reasonable amount to maintain her according to her accustomed mode of living. Her separate income during that time was approximately $775 per month. Although she did in fact restrict her expenses, during that time after defendant had quit making payments toward her support, to an amount which was about $150 less than her separate income, it does not necessarily follow that it should be concluded that, [164]since she had demonstrated under the changed circumstances that it was possible for her to live on an amount less than her own separate monthly income, the amount on which she did live was the extent of her needs, and that her accustomed mode of living should not be considered. In my opinion the trial judge, in determining the matter of plaintiff's necessity for support, under the unusual circumstances of this case—particularly in view of the stipulation (at the time of the divorce) to suspend the ordinary rules as to the time when such determination should be made, was required to consider her mode of living as of the time defendant stipulated that the court should reserve jurisdiction regarding “all matters relating to support.” If the stipulation had not been made that matter would have been determined when the decree was rendered, and, of course; her standard of living at that time, as it had been established by the defendant during the marriage, would have been considered. Even if the matter of her standard of living should not be considered as of that time, but should be considered as of the date of the hearing herein, it appears, as above shown, that as late as December, 1944 (a few months before the hearing herein), when defendant quit aiding in her support, he recognized at that time that her standard of living was the same then as it had been when the decree was rendered.
In any event, irrespective of the amount necessary to support her according to the standard of living which he established for her, the amount actually expended by her under her reduced standard of living, after he quit aiding in her support, impairs and practically consumes her own separate income which she acquired by inheritance from her father, while defendant has retained the community property and commingled it with his separate estate. It is proper, in view of the stipulation, to consider the relative financial conditions of the parties in deciding whether she should be required to impair her separate income and the corpus of her separate estate in order to maintain her accustomed mode of living. During the thirteen years preceding the hearing herein defendant’s income averaged about $61,000 per year. In his brief, defendant states that since the entry of the final decree (to the end of 1944, when he quit paying) he has paid her $59,450. It is to be noted also that during that time his income was in excess of $400,000, and that he had the possession and use of the community property. Although defendant asserted at the hearing that there is no community property, [165]and that the community obligations in 1937 exceeded the value of the community property, it appears that he has admitted that since the final decree was made he sold community property for $82,764.90. The trust created by plaintiff’s father for her benefit was known by the parties to be in existence at the time the stipulation was made. It was not intended by the stipulation that upon the termination of the trust the proceeds thereof should become a substitute for defendant’s obligation to furnish necessary support to plaintiff. The stipulation certainly was not entered into for the purpose of suspending the decision of the court regarding support until the trust ended, so that it might then appear that no necessity existed for support by defendant. The stipulation did not become purposeless and ineffectual when the trust ended, and plaintiff should not be required, under the unusual circumstances here, to impair her separate estate.
As to counsel fees and costs, in my opinion, the evidence supported the order of the trial court. The statements made hereinabove concerning necessity for support are applicable also to the matter of necessity for counsel fees and costs. At the time the stipulation was made there was some community property, and defendant had control of it. The defendant is entitled to use community property in the litigation so far as his necessities require, and the plaintiff is entitled to an equal privilege with him in the use of such part of the community property as may be necessary to maintain her rights. It appears that plaintiff, in proceeding under the stipulation to have the matter of her rights to community property and support determined, is confronted with long and tedious litigation, involving an accounting covering several years. The parties were married in 1911, and the final decree of divorce was entered February 26, 1937. Defendant married again in June, 1937, and at the time of the hearing herein he and the second wife were separated, and there are various questions herein concerning the former community property as it may or may not be commingled with the second community property and with defendant’s separate estate. The hearing on this order to show cause alone extended over a period of several days, resulting in a reporter’s transcript of 404 pages. The defendant has pleaded the statute of limitations, laches, and estoppel; that plaintiff had waived her interest in the community property (before the stipulation was entered into); and that there is no community property. Defendant has been practicing law in Los Angeles since 1909, maintains a large [166]law office, and as above indicated has an extensive and lucrative practice. It is apparent that the amount of counsel fees, costs and expenses, required of plaintiff, under the issues presented by defendant, will be large. This litigation is the result of defendant’s refusal to continue making payments for the support of plaintiff. If she should be required to pay counsel fees, costs and expenses, including the services of accountants for several weeks, it is apparent that all of her. separate income will be consumed and her separate estate will be greatly impaired. Under the unusual circumstances of this case—especially in view of the stipulation, the fact that he has the community property, and that she acquired her separate property by inheritance from her father—she should not be required to so impair her separate property in order to make the stipulation of the parties effective. The attorney for defendant stated during the hearing, in referring to counsel fees and suit money, that since plaintiff had brought the litigation when it was unnecessary “she must pay the freight. ’ ’ If she had not entered into the stipulation before the divorce decree was made, and had insisted, on the contrary, that the matters of support and community property be settled by litiga-tion at the time, before the trust had ended, undoubtedly defendant would have been required to pay the counsel fees and suit money.
The important fact in the present ease which distinguishes it from those cases cited in the majority opinion regarding impairment of separate property is the stipulation herein.
As above stated, irrespective of necessity, the order of the trial judge awarding support was correct, upon the basis that it was compensation or damages or a penalty for the wrong done. The matter of determining, in addition thereto, the fact ' as to whether there was necessity for support was within the sound discretion of the trial judge. Likewise, the matter of determining the fact whether there was necessity for counsel fees and costs, was within the sound discretion of the trial judge. Important questions of fact for the trial judge were: as to plaintiff’s accustomed mode of living; whether there was community property; whether it was intended by the parties in entering into the stipulation that if and when the trust ended the defendant would be relieved of his obligation for support; the construction which the parties themselves placed upon the stipulation, with respect to support, as indicated by their actions and conduct under it for several years; the extent of the litigation; the relative incomes and expenses, and [167]financial condition, of the parties; whether the amount required for support, counsel fees and costs, would impair plaintiff’s separate property. An important question of fact, especially in regard to counsel fees and costs, was whether there was community property, and the trial court apparently disbelieved defendant’s assertion that there was no community property. It seems unreasonable that defendant would have made the stipulation regarding a division of community property if there had been no community property or if plaintiff had waived her rights thereto. In my opinion there was no abuse of discretion by the trial judge, but on the contrary his findings of fact, under the unusual conditions here, were adequately supported by the evidence.
In my opinion, the order should be affirmed.
A petition for a rehearing was denied March 23, 1948. Wood, J., voted for a rehearing.
Respondent’s petition for a hearing by the Supreme Court was denied April 29, 1948.