Frazier v. Frazier

PETERS, P. J.

This appeal grows out of an order made after the final judgment involved in

Frazier

v.

Frazier,

1 Civ. 15207, this day decided

(ante,

p. 551 [252 P.2d 693]).

On the day the notice of appeal from the judgment was filed appellant petitioned for alimony and for support of her son pending the appeal, and for costs and counsel fees on the appeal. Subsequently appellant abandoned her motion

[561]

for alimony, the respondent agreed to comply with the child support order, the parties were restrained from disposing of the community property pending the appeal, costs on appeal were granted appellant, and the motion for counsel fees was dropped from the calendar. Later appellant filed a second notice of motion for counsel fees, supported by affidavits averring that she believes her appeal to be well-founded, that she has no funds to pay her counsel, that she is recovering from a serious operation and is making an effort to secure employment, that respondent earns $120 a week and has other income, and is able to pay. No counteraffidavits were filed. The motion was granted, the court awarding appellant $150 for such counsel fees. From this order the wife appeals, contending that the award is inadequate as a matter of law.

In the divorce proceeding the trial court found that respondent earns $112 take-home pay a week. During that trial the husband first paid $150 on account of counsel fees to the wife, and then the parties stipulated that counsel fees for both parties would be paid out of a certain savings account prior to the division of community property. By its decree the court awarded counsel for the wife an additional $350, thus making a total fee of $500. Similar fees were awarded counsel for the husband. It should also he mentioned that community property totalling $9,640.56 was divided, $5,205.28 to the husband and $4,435.28 to the wife. In addition, the husband was ordered to continue payments on a designated insurance policy for the benefit of the wife and children. The husband was required to pay $75 a month for the support of his son, and by stipulation this payment has continued during the pendency of this appeal.