Zechiel v. Zechiel

LILLIE, J. An interlocutory decree was entered November 24, 1958, granting a divorce to respondent wife. Over a year later appellant husband moved the lower court for entry of the final decree; the motion was denied and he appealed from the order. After notice of appeal respondent moved the lower court for attorneys’ fees to oppose the appeal; on May 6, 1960, appellant was ordered to pay to her on behalf of attorneys’ fees $2,000, $3.00 for a reporter’s transcript and $26.10 for a clerk’s transcript. Thereafter the case of Hull v. Superior Court, then pending in the Supreme Court, was decided (54 Cal.2d 139 [5 Cal.Rptr. 1, 352 P.2d 161]); contending the facts to be “parallel” to those in the Hull ease and that the decision therein disposed of his pending appeal, appellant renewed his motion for entry of the final decree in the lower court. The motion was granted, the order therein providing that the final decree be entered upon dismissal of the appeal. Thereupon appellant moved the trial court to modify its prior order of May 6, 1960, fixing fees and costs on appeal, to reduce the amounts to nothing, and for an order requiring respondent to execute the necessary docu[623]ments to secure the return to him of an income tax refund in the sum of $6,043.84, representing an amount overpaid by him on the 1958 tax. After hearing, the order provided, among other things, for a modification of the order of May 6, 1960, reducing attorneys’ fees on appeal from $2,000 to $500 and payment of $26.60 costs, and a denial of the motion requiring respondent to sign the tax refund check. Appeal is taken therefrom. Appellant claims that the award of $500 to respondent on behalf of attorneys’ fees for work done on the appeal was an abuse of the lower court’s discretion; and that it was error to refuse to require respondent to cause to be refunded to him the amount he overpaid on income tax.

Involved in the prior appeal, for which the $2,000 allowance of attorneys’ fees was originally made, were several substantial legal problems, in the main, relating to whether a merger of indebtedness had occurred relieving appellant from further payments under the interlocutory decree, and whether appellant, for that reason having failed to comply with the terms of the decree, was entitled to have the final decree entered. The record reveals the basic facts reflecting these issues. During the marriage the parties owned a business known as Modern Metal Arts Co.; inasmuch as it was a sole proprietorship and could not be divided, the trial court ordered appellant to pay to respondent the sum of $75,000 to be evidenced by a promissory note secured by a deed of trust on the real property on which the business was located, payable $500 or more per month, commencing December 1, 1958. (Interlocutory decree, par. 3.) Thereafter, appellant failed to make certain payments of alimony and child support under the decree, and installments under the promissory note. Respondent thereupon obtained a writ of execution for the $7,684.42 then owed by him, and levied upon the real property upon which had been placed the deed of trust; pursuant to a sheriff’s sale the property, worth $45,000, was sold to her for the sum due. After this, appellant made no more payments on the $75,000 indebtedness under the interlocutory decree ; while in default thereunder in the sum of $6,830, appellant moved for entry of the final decree of divorce, in his affidavit representing he owed nothing to respondent. On the motion he claimed that the $75,000 debt had been discharged by a merger of the indebtedness by virtue of respondent’s purchase of the real property upon which the deed of trust had been placed, merging the trust deed lien and extinguishing liability on the promissory note, thereby relieving him from