Helpling v. Helpling

LANGDON, P. J.

This is an appeal from an order of the superior court of Los Angeles County requiring plaintiff, in a divorce action to pay to the defendant $50 a month for her support

pendente lite,

$250 for counsel fees and $50 for costs.

It is contended that the order appealed from is improper because in 1918 Margaret J. Helpling, the defendant herein, brought an action against her husband, Osmond T. Helpling, the plaintiff herein, seeking separate maintenance, which was granted her by judgment entered upon a stipulation of the parties and providing for the payment to her of $50 a month “for a period of twenty-four months and no more” and $50 for attorney’s fees in that action. This judgment was fully satisfied by payment as directed therein and was introduced in evidence in the instant case, the position being taken that it settled all property rights and questions of alimony between the parties forever. However, upon a showing that defendant herein was earning $125 a month, but was heavily in debt for expenses incurred by reason of ill health and had no money or property to meet the expenses incident to the present action, the court made the order appealed from, providing means whereby the present action might be defended.

[433]

Appellant relies upon the cases of

Sheppard

v.

Sheppard,

161 Cal. 348, 352 [119 Pac. 492], and

Smith

v.

Smith,

147 Cal. 145 [81 Pac. 411]. These cases do not sustain his position.

Sheppard

v.

Sheppard

presented a situation where the appeal was from an order allowing $50 a month to the wife for separate maintenance. An additional order was made allowing $50 a month during the pendency of the appeal for the support of the wife. This order was also appealed from and the supreme court pointed out that for the period pending the appeal there were two valid, enforceable orders in effect, each providing for the payment of the full amount asked by the wife for her support; that payment had actually been enforced under the first order, and that affirmance of the second order would result in a double payment of an amount adequate for the support of the wife and the payment of twice the amount for which she had asked. It was because of these special circumstances that the second order was reversed, but the supreme court said: “It cannot be disputed, in view of the authorities, that the trial court was authorized to provide for the support and maintenance of defendant by plaintiff pending the determination of the appeal from the judgment, and to this end to make an order directing plaintiff to pay defendant such sums as were reasonably necessary for that purpose. (Citing cases.) And the fact that such support and maintenance for the period of time covered by the order sought was already provided for by the maintenance judgment