Gideon v. Gideon

FOURT, J.

The notice of appeal in this matter states in substance that George Gideon III, the defendant and appellant, hereinafter referred to as the husband, appeals from an order made in the superior court on March 3, 1955, which in effect modified an order previously made for an allowance of attorney’s fees to Marion B. Gideon, the plaintiff and respondent, hereinafter referred to as the wife, and from an order made on July 7, 1955, which in effect denied an application of the husband to quash the execution which had been issued. The effort to appeal from the March 3, 1955, order has been abandoned, and the cause now pertains only to the July 7, 1955, order.

A résumé of the facts is as follows: The wife brought an action in divorce against the husband, on or about November 13, 1953. As a part of the proceedings, she filed an order to show cause and an affidavit in

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attorney’s fees and costs. The order to show cause was heard on November 20, 1953, and among other things, the husband was “ordered to pay forthwith direct to counsel for each of the parties $275 attorney’s fees, on account and $39 costs, each.” The case ultimately proceeded to trial, and an interlocutory judgment of divorce was granted the wife on November 24, 1954. The interlocutory decree provided, among other things:

“It is further ordered, adjudged and decreed that defendant pay forthwith to Gertrude LaVoie Elliott, attorney for plaintiff, the sum of $200.00 for attorney’s fees, plus $51.05 for court costs, these sums being in addition to the $275.00 attorney’s fees and $39.55 court costs heretofore ordered. ’ ’

A notice of intention to move for a new trial was filed by the husband on December 10, 1954, and the motion was heard on January 20, 1955, and granted January 24, 1955. The order granting the new trial set forth that the affidavits which had been filed did not show any irregularities in the proceedings, as was claimed by the husband, but, that the court had failed to find on material issues raised by the answer of the husband in reference to provocation and recrimination, and the motion for a new trial was granted upon such grounds. Thereafter, on February 11, 1955, the wife filed an “order to show cause and affidavit in

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modification of original order for further attorney’s fees and further court costs.” The affi

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