Kopasz v. Kopasz

TRAYNOR, J.

Plaintiff has moved to stay her husband’s appeals from a judgment in her favor in a separate maintenance action and from an order directing defendant to pay her costs and attorney's fees on appeal. The motion is made on the grounds that plaintiff is without funds to pay such costs and fees and that defendant has failed to comply with the order of the trial court that he pay them. Defendant has filed an affidavit in opposition to the motion, alleging that he is unable to comply with the order of the trial court and that if the appeal is stayed he will be precluded from presenting his contention on appeal that the trial court in the separate maintenance action failed to give full faith and credit to a Nevada decree of divorce that defendant secured against plaintiff before the separate maintenance action was instituted. The basis of the trial court’s judgment was that the Nevada decree was void because defendant never acquired a bona fide domicile in Nevada.

When a valid marriage has been admitted and the issue before the court is the validity of a foreign divorce decree, the trial court may in a proper case grant costs and attorney’s fees on appeal until the effect of the foreign decree has been finally determined by the courts of this state.

(Baldwin

v.

Baldwin,

28 Cal.2d 406, 417 [170 P.2d 670].) Accordingly, since defendant is not resisting plaintiff’s motion on the ground that she is herself able to pay her costs and attorney’s fees on appeal, the only question now presented is whether defendant’s alleged inability to pay such costs and fees is a valid defense to plaintiff’s motion.

In protection of the rights of the respective parties it has been generally held in actions involving matrimonial status that the court will not proceed with an action against a spouse who is unable to pay the amounts actually necessary to conduct a defense, unless the spouse seeking the assistance of the court is able to and does pay such amounts.

(Allen

v.

Superior Court,

133 Cal. 504, 505 [65 P. 977];

Dunphy

v.

Dunphy,

161 Cal. 87, 90 [118 P. 445];