Berry v. Berry

VALLÉE, J.

This is a companion case to

Berry

v.

Berry, ante,

p. 50 [294 P.2d 757]. Defendant appeals from orders denying her application for an allowance for attorney’s fees and costs on appeal. The nature of the appeals and the facts relative thereto appear in that opinion

After defendant had filed her notice of appeal in the companion case, she applied for costs and attorney’s fees for the purpose of prosecuting her appeals and defending against plaintiff’s cross-appeal. Her application was referred to a commissioner who recommended that the application be denied. On that recommendation the court on November 23, 1954, made this order: “Motion for attorney’s fees denied.” No order was made with respect to the application for costs. Defendant thereafter filed exceptions to the findings and recommendations of the commissioner. (Code Civ. Proe., § 259a, subd. 2.) On December 8, 1954, the exceptions were denied and the order of November 23 was affirmed. De

[64]

fendant appeals from the orders of November 23 and December 8, 1954.

The application was denied on each of the following grounds: 1. The appeal from the order that the final decree of divorce be entered

nunc pro tunc

as of July 7, 1953, was not bona fide because plaintiff was entitled to a final decree at the time the remittitur was filed in the superior court on July 7, 1953. 2. The attorney’s fees previously ordered are adequate. 3. The appeal from the order finding plaintiff not guilty of contempt is one which defendant has sufficient funds to prosecute, in that she has approximately $17,000 in a savings account and owns stocks valued at about $8,000; and the question of property and alimony between the parties was properly settled and is

res judicata

under the decision in

Berry

v.

Berry,