In Re Marriage of Stachon

[508]

Opinion

TAYLOR, P. J.

On December 15, 1976, in another proceeding, the trial court entered an order increasing appellant former husband’s child support payments. He filed notice of appeal in that action, 1 Civil No. 41544, on January 31, 1977. On March 1, 1977, respondent former wife filed a notice of motion for attorneys’ fees and costs to defend the appeal. On March 30, 1977, the trial court ordered appellant to pay respondent $650 attorneys’ fees and $150 costs to defend the appeal. From the order awarding attorneys’ fees and costs, former husband prosecutes this appeal.

Appellant first contends that under Code of Civil Procedure section 916, subdivision (a),

1

an appeal stays proceedings in the trial court with respect to the judgment or order appealed from and matters embraced therein; and therefore, the court was without jurisdiction to award attorneys’ fees or costs. Appellant concedes that in

McLellan

v.

McLellan

(1972) 23 Cal.App.3d 343, 352 [100 Cal.Rptr. 258], the motion for attorneys’ fees on appeal was made substantially later than the filing of the notice of appeal but contends that the opinion does not discuss section 916, subdivision (a).

Civil Code section 4370, subdivision (a), provides: “(a) During the pendency of any proceeding under this part, the court may order the husband or wife, or father or mother, as the case may be, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys’ fees; and from time to time and before entry of judgment, the court may augment or modify the original award for costs and attorneys’ fees as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding relating thereto. In respect to services rendered or costs incurred after the entry of judgment, the court may award such costs and attorneys’ fees as may be reasonably necessary to maintain or defend any subsequent proceeding therein, and may thereafter augment or modify any award so made. Attorneys’ fees and costs within the provisions of this subdivision may be awarded for legal services rendered or costs