Huntington v. Huntington

MOORE, P. J. The questions here posed are (1) whether the court may require a husband to reimburse his wife or her lawyer for costs they have already incurred and expended in the prosecution of a divorce action; (2) whether, when an award against the defendant for costs for prosecuting a divorce case included sums which the plaintiff had already expended, the latter, in good conscience owes such sums to the defendant; and (3) whether the court had jurisdiction to allow the filing of a belated cost bill.

This is a companion case to one of the same title numbered 19562, ante, p. 705 [262 P.2d 104], whereby the parties were divorced.

In December, 1951, leaving plaintiff in Los Angeles, defendant migrated to the State of Nevada. His purpose was to establish residence and citizenship in the sister state whereby to avoid service of legal process of California courts. On the 18th of that month, plaintiff sued him for divorce in the court below and had an order to show cause issued against her husband to enforce payment of alimony, court costs and attorneys’ fees, pendente lite. Defendant made a special ap[717]pear anee solely for the purpose of attacking the jurisdiction of the court. At a hearing of the order to show cause on January 24, 1952, a minute order was entered, followed by a formal, written order dated January 29, 1952, which in part provides that the court had jurisdiction of the subject matter and of the person and property of the action, defendant having been duly served, and further directed payment by defendant of alimony to plaintiff and ordered him “to pay counsel for the plaintiff the sum of Six Thousand Dollars ($6,-000.00) on account in connection with legal services heretofore rendered and now contemplated to be rendered by said attorneys, and the sum of Fifteen Hundred Dollars ($1,500.00) for court costs, the employment of Nevada counsel, investigators, and the like, and in connection with all costs incurred to date ...” Defendant seasonably applied for a modification of the formal document and on March 31, 1952, it was amended so that the “monthly payments due from defendant to plaintiff's attorneys on account of attorneys’ fees and costs heretofore ordered are reduced from $500.00 per month to $350.00 a month.”

The cause was tried August 8, 1952. Findings favorable to plaintiff were filed, and the decree, adjudging defendant’s Nevada divorce to be a sham, dissolved the marriage “when one year shall have expired.” Defendant’s appeal therefrom (Civ. No. 19562) was duly lodged in this court. But the more vexing problem was not involved in that appeal. It appears that plaintiff’s attorney testified that costs had been paid prior to the trial in the sum of $1,450.96 and that $1,200 thereof had been advanced by his firm to pay investigators and lawyers in Nevada. Thereupon, at the request of defendant’s counsel, schedules were prepared by a competent accountant to aid the court. Plaintiff’s counsel stated that after June 15, 1952, by reason of the accounting and other services required, there would be about $500 additional expenses which would be proved by an affidavit to be filed prior to the entry of the interlocutory decree. Such affidavit was made by Miss Gier, the bookkeeper in the office of plaintiff’s counsel. It showed that after June 15, 1952, such counsel had advanced $568.96 in the prosecution of the action. But, although served previously, the affidavit was not filed until the day the judgment was filed. The trial judge evidently acted upon it by declaring in the judgment the amount of money disbursed by plaintiff’s counsel on her behalf. The findings declare: