Butte v. Superior Court

WOOD (Fred B.), J. Nancy Butte, plaintiff and cross-defendant in a divorce action, seeks a writ restraining the superior court from proceeding with the trial until a reasonable time after defendant and cross-complainant has made certain records and documents available for her inspection and has paid her attorney fees, money for the employment of an accountant, and money for costs of suit, as previously ordered by the court.

The issues here presented have been twice considered by the trial court: first, upon hearing and granting defendant’s motion to set the cause for trial; second, upon hearing and denying plaintiff’s motion to postpone the trial. The decision in such a case rests primarily with the trial court acting in the exercise of a sound discretion; especially in view of the statutory provision that an award of costs or of attorney fees “may be enforced by the [trial] court by execution or by such order or orders as, in its discretion, it may from time to time deem necessary.’’ (Civ. Code, § 137.3, emphasis added.) The question before us as a reviewing court is not what action we would take if it were for us in the first instance to decide. It is: Can we say, in view of all the ■circumstances of the case, that the trial court committed an abuse of the discretion vested in it ?

Two orders for the payment of money are involved.

An order dated February 20, 1953, directs defendant to pay plaintiff’s attorney $500 on account of fees, the latter “payable immediately. ’ ’*

An order dated December 29, 1954, directed defendant to make available for inspection all documents, book accounts, bank accounts, income tax returns, and other records of income and expenses of defendant or of any business, partnership or corporation in which he has had an interest since the marriage of the parties.

[55]The December 29, 1954, order also directs defendant to pay plaintiff $500 for the employment of an accountant, to be paid in advance of performance of services by the accountant; if defendant has not paid or arranged for payment of this sum by January 26,1955, “the matter of time of payment will at that time be ordered by the court.” (We find in the record no order fixing the time for such payment.)

The December 29, 1954, order also directs defendant to pay plaintiff the additional sum of $75 court costs, “payable immediately,” and to pay plaintiff’s attorney an additional $1,000 as attorney’s fees, “payable immediately” except that the payment of this $1,000 “shall not be enforced by plaintiff’s attorney by execution or contempt order prior to the trial of this action. ’ ’*