Cline v. Cline

California Court of Appeal Jun 22, 1933 No. Docket No. 898.Published

Before: Andrews

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Holding. The court held that the trial court did not abuse its discretion in awarding attorney's fees, costs, and support pending appeal, as the plaintiff was not legally required to accept a tender of funds that might have jeopardized her appeal, and the award was justified by the parties' financial circumstances and the good faith of the appeal.

Issues

Whether the plaintiff was legally required to accept a tender of funds awarded in a judgment to avoid the necessity of an order for support and costs pending appeal.
Whether the trial court abused its discretion in awarding attorney's fees, costs, and support pending appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It cannot be held that as a matter of law she was bound to accept it to the end that its acceptance might be used to defeat this order.”

“The record does not disclose any abuse of discretion on the part of the trial court in making the order from which appeal is taken.”

[714]

ANDREWS, J.,

pro

tem.

This appeal is from an order allowing plaintiff attorney’s fees, costs on appeal, and support pending appeal. Judgment was entered December 6, 1930, granting a divorce to the husband and giving to the plaintiff certain furniture by agreement, and awarding to her the sum of $2,000 found upon the trial to be her separate property. Defendant immediately upon the entry of judgment tendered to plaintiff the $2,000 and the tender being refused, deposited the same in court subject to plaintiff’s order. He also tendered the furniture awarded to her by the judgment. Plaintiff appealed from the judgment and from the whole thereof and, thereafter, obtained the order for costs on appeal, from which the present appeal is taken.

Two general contentions are made by defendant: (a) that it was the right and duty of plaintiff to accept the $2,000; (b) that having received the '$2,000 she would have available means for prosecuting her appeal without the necessity of obtaining the order here under review.

The plaintiff’s position is that to accept the $2,000 would prevent her from appealing from the judgment and also that if she did accept the $2,000 the order would nevertheless be a necessary and proper order.

(D Whether the plaintiff could safely accept the $2,000 depends upon whether the issues which were presented by the pleadings and tried in the case, and the judgment which was entered upon such issues were so far severable and distinct that appeal could be taken from that portion of the judgment which was unfavorable to plaintiff without involving the provision respecting payment of the $2,000, and whether the appeal was so taken. The controversy involved a large amount of property which plaintiff in her complaint alleged to be community property. She made no claim to any separate property. A reversal of the judgment would involve a retrial of the entire property rights of the parties, with no assurance that there would be awarded to plaintiff on a second trial this sum of $2,000 or any sum whatever. The plaintiff did not undertake to appeal from that part of the judgment which was unfavorable only, but from the judgment as a whole. It is evident that to accept this favorable portion of the judgment

Cline v. Cline

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ANDREWS, J.,

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