In Re Marriage of Harbach

Opinion

ALLPORT, Acting P. J.

On April 9, 1973, wife filed a petition seeking dissolution of marriage and, inter alia, spousal support, attorney’s fees and costs. Pursuant to an order to show cause filed January 17, 1974, she sought spousal support, temporary attorney’s fees, temporary accountant’s fees and costs pendente lite. Following a hearing on the order to show cause, the following order was made:

“Petitioner’s request for spousal support, attorney’s fees, accountant’s fees and costs pending trial is denied.

“There is reserved to the trial court jurisdiction to fix and determine attorney’s fees, accounting fees and costs from the commencement of the rendition of such legal and accounting services based on the facts appearing at the time of trial.”

[407]

On April 3, 1974, wife filed a notice of appeal from that order contending that the court erred in failing to provide for spousal support, attorney’s and accountant’s fees and costs pendente lite.

The purported appeal must be dismissed. Code of Civil Procedure section 904.1 authorizes an appeal from an interlocutory judgment of dissolution of marriage but makes no provision for an appeal from an order denying spousal support, fees and costs pendente lite. The record before us fails to disclose that any judgment, interlocutory or final, has been entered.

1

Civil Code section 4357 provides that the trial court “may” order payment of spousal support during pendency of the proceeding but such an order is not made mandatory by the statute and is subject to modification at any time. The matter of spousal support, fees and costs must be determined at time of trial pursuant to the petition for dissolution and may be reviewed on appeal from the judgment. An arbitrary refusal to make an appropriate order for such support, fees and costs may be attacked by use of the prerogative writ procedure provided in Code of Civil Procedure sectiohs 1084 et seq. and 1102 et seq.

(Newlands

v.

Superior Court,