White v. White

Beatty, C. J. This is a suit for divorce, commenced by the husband. The wife filed a cross-complaint, and [213]the decision of the court was announced in her favor. Pending the preparation of findings, she moved for an allowance of alimony to enable her to pay counsel fees. Her motion was denied, “ without prejudice,” and she appeals from that order.

Eespondent contends that the order is not appealable, but we think it must be held otherwise, on the authority of Sharon v. Sharon, 67 Cal. 185. With respect to the right of appeal, there would seem to be no distinction on principle between an order denying and an order granting alimony pendente lite. As to the merits of the case, it appears that the defendant has been represented by three attorneys, — Mr. Highton, Mr. Cooper, and Mr. McPike, —all of whom participated in the trial of the case and in the preliminary preparations. There was evidence that the services of Mr. Highton were worth from ten to fifteen thousand dollars, and those of the other two gentlemen from eight to ten thousand dollars; but it was shown that, about the time the litigation commenced, Mr. Highton and the defendant entered into a contract by which she agreed, in consideration of his services as her attorney, to pay him a certain percentage on the value of the property secured by her as a result of the litigation. In other words, his compensation was made entirely contingent on success. The existence of this agreement was a sufficient reason for refusing any allowance to pay Mr. Highton for his services as attorney. (Sharon v. Sharon, 75 Cal. 39-43.) The contract with Mr. Highton, it is true, differs in important particulars from the Tyler contract in the Sharon case, but there is no ground of distinction so far as concerns the right of defendant to receive an allowance from respondent for the purpose of paying Mr. Highton’s fees. By the terms of his agreement, he was bound to perform all the services he did perform as appellant’s attorney, and therefore she had no need of other means to secure their performance.

[214]But as to Messrs. Cooper and McPike, who were employed before the making of the Highton contract, and who had no knowledge of its existence until after the trial, if their services in addition to those of Mr. Pligliton were necessary to the appellant to enable her properly to defend the action commenced by her husband, or to present the merits of her cross-action, the fact that Mr. Highton had contracted for a contingent fee was not in itself a sufficient ground for denying a reasonable allowance to pay them. We do not understand it to have been decided in the Sharon case that the existence of the Tyler contract precluded an allowance to the plaintiff of a reasonable amount for the compensation of other attorneys whose employment was necessary. The order in that case was reversed, because it was a judgment, or several judgments, in favor of persons not parties to the action; i. e., the several attorneys for plaintiff, including the Tylers. (75 Cal. 38, 39.) This, we say, was the ground of reversal. It is also true that the order was criticised, and would undoubtedly have been modified on other grounds. As to the Tylers, who were allowed twenty thousand dollars, it would have been wholly set aside, because their services were secured by the contract for a contingent reward. But as to the other attorneys, who had been allowed thirty-five thousand dollars, it was merely said that there appeared to have been no necessity for such an array of counsel, and that the amount allowed was excessive and beyond the discretion of the court. (75 Cal. 39, 40.) The principle decided, and the principle which runs through all the cases, seems to be that the wife in a divorce case is entitled to such allowance out of the community estate as may be necessary to enable her to maintain her rights. Her husband, who has control of the community estate, is presumed to be using it in the litigation so far as his necessities require, and she is entitled to an equal privilege. Therefore, if she needs money to enable her to