Wood v. Wood

MARKS, J.

This is an appeal from a judgment of the Superior Court of Los Angeles County awarding to respondent $100 per month for her support and maintenance during the period of one year, and the sum of $100 attorney’s fees expended by her for the prosecution of the action.

The complaint was filed on the twelfth day of August, 1929. The cause was tried on September 24, 1929, and the judgment filed on October 7th of the same year.

Appellant presents but two grounds for reversal of the judgment which are necessary for us to consider on this appeal. He maintains, first, that the portion of the judgment awarding attorney’s fees to the respondent, gave her this money as fees for past services of the attorney and, second, that as the action was commenced on August 12, 1929, and the amendment of that year to section 137 of the Civil Code did not go into effect until the fourteenth day of August, 1929, the amended portion of the section could not be held effective in so far as this action is concerned.

This is an appeal upon the judgment-roll. We must, therefore, assume that every necessary step' was taken in the court below to support the judgment

(E. E. McCalla Co.

v.

Sleeper,

105 Cal. App. 562 [288 Pac. 146]). We may, therefore, assume, in support of the award of attorney’s fees, that an order to show cause was duly and regularly issued after August 14, 1929, requiring appellant to show cause why he should not be required to pay a reasonable attorney’s fee for the services of respondent’s attorney; that this order to show cause was duly set down for hearing and heard; and that upon stipulation of both parties the trial court reserved a decision upon the question of attorney’s fees until the trial of the case and the rendi

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tion of judgment, and that the portion of the judgment awarding attorney’s fees was, in effect, a decision of the trial court upon the order to show cause made after such stipulation and the reservation of such ruling.

The right to award a party support money and counsel fees in a separate maintenance action is based upon the provisions of section 137 of the Civil Code. It is contended by appellant that by an amendment to this section (Stats. 1927, p. 441), changing the opening words of the fourth sentence of the section from “During the pendency of such action” to “During the pendency of an action for divorce,” the trial court was deprived of the right to award respondent support money or attorney’s fees as the action was commenced during the time this amendment of 1927 was in effect, and before the amendment of 1929 took effect.