Lacey v. Lacey

The Court. Action for divorce and judgment for plaintiff. Defendant appeals from that part of the= [46]judgment which decrees to plaintiff three thousand five hundred dollars and interest for her counsel fees.

During the pendency of the action respondent applied for counsel fees and the court allowed her five hundred dollars, which was paid, with “ leave to apply for a further allowance.” In addition to this, appellant paid respondent, prior to and during the pendency of the action, two hundred dollars per month. No further allowance for counsel fees was made until the final judgment, by which respondent was awarded a large amount of real and personal property of the value of nearly one hundred thousand dollars, and being about one-half of the community property. In this final judgment respondent was allowed two thousand five hundred dollars as additional counsel fees.

The allowance was for past services, and, under the circumstances, was clearly not “ necessary to enable the wife .... to prosecute .... the action”; and upon the authority of Loveren v. Loveren, 100 Cal. 493, and Mudd v. Mudd, 98 Cal. 322, it is erroneous.

The cause is remanded, with directions to the superior court to modify the judgment by striking therefrom that part which awards her counsel fees. In all other respects the judgment is affirmed.