Armstrong v. Armstrong

DORAN, J. Reference is hereby made to the companion case, Civil No. 15738, (ante, p. 316 [183 P.2d 901]) wherein the plaintiff Ruth K. Armstrong appealed from an order setting aside an interlocutory judgment of divorce, and a further order denying plaintiff’s motion to vacate the first order, for a knowledge of such facts as are not fully stated herein.

The material facts directly involved in the present appeal may be summarized as follows: On August 14, 1945, the respondent wife was granted an interlocutory judgment of divorce from the appellant husband who had been personally served with summons; this interlocutory divorce judgment was, on January 26, 1946, set aside on the ground of “mistake, inadvertence, surprise or excusable neglect of said defendant” under the provisions of section 473 of the Code of Civil Procedure, based upon a showing of the husband’s “confused mental state” alleged to have resulted from worry over the domestic situation and various acts of the wife. Thereafter the wife filed an appeal in the divorce case, and the order now appealed from was entered on May 17, 1946, requiring Lee R. Armstrong to pay to Finlayson, Bennett & Morrow, plaintiff’s attorneys, “the sum of $500.00 on account of attorney fees, for the prosecution of plaintiff’s now pending appeal in this action . . . and in addition . . . the sum of $150.00 for costs” of such appeal. Neither plaintiff nor defendant appeared in person at the hearing of this motion; both parties relying on affidavits filed in the case, and the husband presenting evidence of a bank clerk in reference to certain accounts which had been maintained by the wife.

[324]It is contended by the appellant husband that the making of the order for payment of attorney fees and costs incident to the wife’s appeal “amounted to a plain abuse of discretion”; that the "wife’s showing was insufficient to justify the order ’ ’; that “plaintiff’s appeal from the order setting aside the interlocutory judgment of divorce, does not come within the provisions of Section 137, Civil Code,” which provides for allowance of counsel fees, etc., “necessary for the prosecution of the action.” Appellant also complains that the order was void because it “required defendant to pay (the costs) directly to plaintiff’s attorneys.”

A considerable portion of appellant’s argument is concerned with a review of the affidavits and evidence offered at the hearing, bearing upon the financial situation of the parties and the alleged adultery of the respondent wife. Obviously, the merits of appellant’s defense to the wife’s action for divorce, and of the husband’s cross-action, are not within the scope of the present controversy. The only matter before the trial court was the purely discretionary one of requiring the husband to pay attorney fees and costs of the wife’s appeal.