Mudd v. Mudd

Harrison, J. The appellant brought this action for a divorce from the defendant, and, on the 19th of March, 1892, after the defendant had appeared in the action, but before she had answered the complaint, she made an application to the court for an order directing the appellant to pay to her temporary alimony pending the suit, and also a certain amount of money, “as counsel fees and court costs.” The court thereupon made an order directing the appellant to appear before it on the twenty-second day of March and show cause why the defendant’s application should not be granted. On that day the plaintiff appeared and objected to the hearing of the application for the reason that a notice of five days had not been given him, and upon this objection being overruled, asked for a postponement of the hearing on account of the necessary absence of his attorney, in support of which he filed the affidavits of himself and also of his attorney. The court denied this motion, and thereupon, under his objection, proceeded to a hearing of the application, and at its close made an order directing him to pay to the defendant “the sum of seventy-five dollars per month during the pendency of this action, as temporary alimony, and the further sum of three hundred dollars as counsel fees and costs for the defense of said action.” From this order the plaintiff has appealed.

I. It was not necessary for the court to give to the appellant any notice of the defendant’s application. Section 137 of the Code of Civil Procedure provides that “the court may in its discretion require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” This order may be made without any previous notice, and in practice is usually made ex parte. It is to be presumed that the court will exercise a wise discretion in determining the amount to be paid, fixing it according to the needs of the wife, and having also due regard to the ability of the husband to comply with the order it may make. (Turner v. Turner, 80 Cal. 141.) If for any reason the order is made improvidently, the court will listen to any applica[322]tion of the husband to set it aside, or for its modification. Presumptively the community property is under the control and in the hands of the husband, and the court needs only to be advised of his ability to pay such an amount as may be needed for a proper defense by the wife, in order that for the purposes of the litigation the parties may be upon an equal footing. The giving notice to the appellant in the present case was a favor on the part of the court, and the court could make the notice of such length as it chose. As the defendant did not have a right to any notice, the provisions of section 1005 of the Code of Civil Procedure have no application.