Barker v. Barker

DORAN, J. The defendant husband has filed the present motion to dismiss the plaintiff wife’s appeal from a minute order entered December 13, 1954, ordering the wife to pay $7,500 as the husband’s attorney fees on appeal. The husband had previously appealed from an interlocutory judgment of divorce, and the wife filed a cross-appeal, which appeals are not involved in the present motion. Defendant’s motion is predicated on two grounds: (1) that the appellant wife “has attempted to appeal from a stipulated order, or an order made by the consent of the parties”; and (2) that appellant “has accepted the benefits of the stipulated order, and, thus, waives her right of appeal.”

The divorce action herein involved was instituted by the [742]wife, Edythe Marrenner Barker; the husband, Jesse T. Barker, filed an answer thereto. An order pendente lite, ordered the wife to pay $2,500, on account of the husband’s attorney fees, and at the trial the wife was ordered to pay an additional sum of $3,500 to the husband’s attorneys, making a total of $6,000.

After trial of the case, and appeals by both parties as hereinbefore mentioned, the defendant husband filed a motion to require the wife to pay further attorney fees in connection with appeal No. 20929, which motion was opposed by the wife on the ground, among others, that the appeal was without merit. At the first hearing of this motion, the trial court said: “I do not believe I will deny him the right (to appeal) on account of it not being a meritorious appeal,” and, “All I can say is that the lady is not going to pay for it. ’ ’ The matter was then continued for two weeks, to “see if you gentlemen can’t work something out here.”

Thereafter, the parties entered into a written “Stipulation re filing joint income tax returns and payment of attorney fees and costs,” signed by both parties and the respective attorneys. This stipulation was “entered into with reference to the following facts,” and recites that, “O. Prior to the entry of said Interlocutory Judgment of Divorce, plaintiff requested defendant to join with her in filing joint United States and California Income Tax Returns for the calendar year 1953 and offered that the tax saving resulting from filing such joint returns be used for the payment of defendant’s attorney fees and costs herein and the balance be used for the support and maintenance of the minor children of the parties; defendant refused to sign said joint income tax returns.” It also recites that plaintiff had opposed defendant’s motion for attorney fees “on the ground, among others, that defendant has the ability to create a fund for the payment of his attorney's fees and costs on appeal by accepting plaintiff’s offer to use the tax savings resulting from the filing of joint income tax returns for the calendar years 1953 and 1954.”