McBride v. McBride

GOODELL, This is an appeal from an order denying a motion for counsel fees and costs on appeal.

By an interlocutory decree on December 26, 1944, respondent was ordered to pay appellant $500 a month for the support and maintenance of herself and their three children. On December 16, 1946, the decree was modified by a reduction to $250, and on March 2, 1948, it was reduced to $50 a month. Apparently a notice of appeal from the last order was filed, although it does not definitely appear from the record. Appellant then moved for counsel fees and costs wherewith to prosecute such appeal and on denial this appeal was taken.

Appellant concedes “the rule that the granting of costs and counsel fees in actions of this character is generally a matter of discretion with the trial court. ’ ’ That rule is well settled. (Sweeley v. Sweeley, 28 Cal.2d 389, 393 [170 P.2d 469]; Kellett v. Kellett, 2 Cal.2d 45, 48 [39 P.2d 203]). She claims, however, that in this case the court acted arbitrarily.

In her affidavit appellant states that she “has no income whatsoever and has not sufficient money or means to pay the costs of an appeal and the fees of her counsel for prosecuting” it. In his affidavit respondent does not specifically deny this, but he does state “that since June, 1943, plaintiff has received from defendant moneys and properties reasonably valued as follows: cash on sale of Burlingame home $8431.23; other cash $23,270.00; cash for attorney’s fees $610.00; furniture $5,000.00; Russian River home $1,000.00; automobile $1500.00.” This totals $39,811.23. He then alleges that he is without the means to meet such an order and states the amount of his outstanding indebtedness, which he is unable to pay.

The allegations just quoted are not denied by appellant. We are mindful of the cases holding that an order should be made when a wife’s testimony that she is wholly without income stands uncontradicted (e. g., Norris v. Norris, 50 Cal.App.2d 726, 735 [123 P.2d 847]; Coleman v. Coleman, 23 Cal.App. 423, 426 [138 P. 362]) but such eases presuppose a showing that the husband can pay.

As this case had been before the court on several occasions in the four years following 1944, it would seem that what was said in Kellett v. Kellett, 2 Cal.2d 45, 49, supra, is apposite: “In passing upon the trial court’s denial of plaintiff’s motion for costs on appeal and for maintenance pending appeal, it is proper to take into consideration not only the particular action that was then before the court but other [331]