Low v. Low

VALLÉE, J.

Defendant Seth Low, referred to as the husband, appeals from parts of an order made on application of plaintiff in an action for divorce. Defendant Naneo, Incorporated, appeals from the entire order. The cause is here on a settled statement.

On March 31, 1955, plaintiff applied for alimony pendente lite, an allowance for support of two minor children, for their custody, and for an order restraining defendant husband and Naneo, Incorporated, from disposing of any community property. The application was supported by two affidavits of plaintiff. An order to show cause issued. The husband filed a counteraffidavit.

Counsel for plaintiff and counsel for the husband stipulated that the matter be heard by a judge pro tempore, and an order was made to that effect. Naneo had been served with process and had made an appearance by its attorney. Counsel for Naneo did not join in the stipulation for the appointment of a judge pro tempore.

After a hearing an order was made in part as follows: The husband “to pay $500.00 on account of expenses of accountants to assist plaintiff in examination of the records of Naneo Incorporated,” and “to pay all bills listed in Plaintiff’s exhibit 1 except” certain specified items; and restraining both parties “from disposing or encumbering community property except for payment of legal fees, costs, except in the ordinary course of business or for the necessities

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of life.” The husband appeals from the parts of the order directing him to pay the bills listed in exhibit 1, to pay accountants’ fees, and enjoining him from disposing of or encumbering community property.

The Appeal of the Husband

The first contention is that the order is void for want of jurisdiction insofar as it orders the payment of bills and accountants’ fees because none of the moving papers on which defendant stipulated to the hearing of the matter by a judge pro tempore contained any application for the payment of bills or for accountants’ fees; because there was no evidence supporting the implied finding of the necessity for the payment of bills or for accounting services; and because accounting services are not money “reasonably necessary for the cost of maintaining” the action within the meaning of Civil Code, section 137.3. It is also urged the order is ambiguous and unintelligible in that it does not specify which bills defendant is to pay, the sums ordered, or to whom they are to be paid. And it is claimed the part of the order restraining the husband from disposing of or encumbering community property is without support in the evidence.