Sharpe v. Wesley

PEEK, J.

In August, 1942, appellant, the putative father of respondent’s minor son, brought suit against her and her husband, to enforce compliance with the terms of a written agreement alleged to have been executed previously by appellant and respondent. The complaint alleged plaintiff’s performance of the conditions imposed upon- him by the terms of said agreement, including those pertaining to support and care, and charged defendants with refusing to permit him to enjoy his right of visitation and custody thereunder. To said complaint defendants filed an answer and “counterclaim,” admitting the making of the agreement but asserting that plaintiff had failed to live up to his obligations thereunder, both as to support and care, that he was an unfit and improper person to have the custody of the child at any time, and concluded with a prayer that they be given exclusive custody of said minor and for such other relief as the court might deem proper. Thereupon appellant filed an “answer to defendants’ answer and counterclaim,” in which he denied the assertions made against him and reiterated his prayer for the relief asked in his complaint. Upon stipulation of the parties, a consent decree was entered, embodying in substance the provisions of said agreement. Thereafter, in September, 1944, an order was made modifying said decree so as to deny to appellant all right of visitation and custody. In September, 1945, appellant procured an order to show cause why the judgment should not be modified to grant to him permanent custody and control of said minor. Prior to the hearing thereon, and upon respondent’s motion, a minute order was made requiring appellant to pay to respondent pendente lite attorney’s fees in the sum of $150. In connection with appellant’s motion to vacate such order it was stipulated that the same was made on the ground that it was in excess of the power of the court, that appellant was not in default of any of the payments for support of said child, and that the only issue before the court in the pending proceeding, i. e., the order

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to show cause, related to a change in the custody of the child. The trial court denied appellant’s motion to vacate the order allowing attorney’s fees, and the appeal herein is solely from said order.

Although there is nothing in the transcript to so indicate, it appears from the briefs on file that said order of the trial court was predicated on Civil Code, section 196a, which reads as follows;