Howard v. Howard

STURTEVANT, J. This is an appeal by the plaintiff from an order refusing to allow her moneys to pay alleged attorney fees and costs in defending an appeal which the defendant has taken from a judgment establishing as a judgment in this state a decree rendered by the Second Judicial District Court of the County of Washoe in the State of Nevada in an action brought by the plaintiff to obtain a decree of divorce. The said California decree was rendered March 3, 1944. Later the defendant appealed. Thereafter the plaintiff filed a notice of motion. In that notice she alleged she would ask an order of court allowing her $5,000 as counsel fees and $500 as and for costs. She also alleged she would base her motion on “all the records and files in the above entitled action, together with the affidavit of plaintiff attached hereto, points and authorities attached hereto and further affidavits or evidence as may be introduced at the time of the hearing of said motion.” In the said affidavit so attached to said notice she alleged among other things that she had no moneys, that she desired to defend said appeal, that the defendant had a personal fortune of a value in excess of $3,000,000 and an annual income in excess of $150,000 and that since the first day of December, 1941, she had been dependent upon relatives for the maintenance of herself and her children and had been unable to pay any moneys to her attorneys. Said documents were served on the defendant and he served and filed an affidavit in which he alleged that the plaintiff was not without moneys to pay such alleged costs, that their children were not supported by plaintiff’s rela[733]tives, that defendant had supported said children from the date they were born, that of the costs thereof $15,920 was paid by defendant’s father, C. S. Howard, and the balance $27,882.38 was paid by the defendant, that said C. S. Howard was by an order of court appointed guardian of said children on January 20, 1944, duly qualified and has since acted as such guardian, that the children are in boarding schools; that plaintiff never at any time supported, educated or maintained said children; that $5,000 is not a reasonable sum to pay plaintiff’s attorneys and that $500 is not a reasonable sum to pay her costs. Defendant denied he had a personal fortune of $3,000,000 or that he had an annual income in excess of $150,000 and alleged that his income was not in excess of $20,000.

On those affidavits the motion was heard. The trial court, on October 17, 1944, made an order “that the motion of the above named plaintiff and cross-defendant, Anita Z. Howard, for attorney fees and costs heretofore filed herein be and the same is hereby denied.” From that order no appeal was taken. On October 27, 1944, the plaintiff served and filed a notice of motion to amend said order. The notice recited said motion would be based on “the motion for an allowance of attorneys’ fees and costs heretofore made, the affidavits in support thereof, the order denying the same, this motion, the affidavit in support thereof, plaintiff and cross-defendant’s points and authorities in support of said motion, and the records and files of said action. ’ ’ On the same date Mr. Charles M. Stark, one of plaintiff’s attorneys, made an “affidavit in support of motion” which we assume is the affidavit above mentioned in that notice. The only allegation of new matter contained in said affidavit was as follows: “That in order to properly present a record to said appellate court, said order denying said motion for attorneys’ fees and costs properly should set forth the grounds upon which the‘court arrived at its conclusion that said motion should be denied.” Later the trial court, on December 6, 1944, entered an order reciting no new facts but merely providing: ‘‘ Said court concludes as a matter of law that counsel fees and costs in such a case as that at bar can, under no circumstances be allowed to plaintiff and cross-defendant in aid of her defense of said appeal and that counsel fees and costs are not legally allowable under the laws of the State of California in the defense of an appeal from a judgment of the court establishing as a