Ott v. Ott

STURTEVANT, J.

This is an appeal from an order making an allowance to the defendant wife in the sum of $300 to pay her attorney fees and costs in opposing an appeal taken in a divorce action, that is, the appeal in

Ott

v.

Ott,

(No. 8719)

ante,

p. 322 [15 Pac. (2d) 896], this day decided. It is claimed that the remarriage of the defendant terminated plaintiff’s duty to pay as alimony any money necessary to enable defendant to prosecute or defend such action.

(Tremper

v.

Tremper,

39 Cal. App. 62 [177 Pac. 868] ;

Hite

v.

Hite,

124 Cal. 389 [57 Pac. 227, 71 Am. St. Rep. 82, 45 L. R. A. 793].) It will suffice to state that neither appeal is a proceeding “ ... to prosecute or defend such (divorce) action”. The defendant had asked for an order to modify the judgment regarding the custody of the children. The welfare of the children was the sole subject of her motion. In the divorce action a final decree had been entered and that action had become a closed book as to the plaintiff and the defendant, but the rights of the children had not been finally disposed of. (Civ. Code, sec. 138 ;

Jacobs

v.

Jacobs,

68 Cal. App. 725 [230 Pac. 209].)

It is next contended that the property settlement agreement, sanctioned and approved by the trial court in the divorce action, released the plaintiff from such a claim as is here made. It has been held that it did not release a wife’s claim for counsel fees and costs when acting in her own behalf.

(Steinmetz

v.

Steinmetz,

67 Cal. App. 195 [227 Pac. 713].) For more cogent reasons it did not have that effect in a proceeding in which the welfare of the children was alone involved.