Tucker v. Tucker

ASHBURN, J. This appeal presents the question of the propriety of an award of a wife’s attorney fee in a proceeding arising after entry of judgment of divorce.

The wife made a motion that defendant husband be held in contempt for violation of the custody order set forth in the judgment, as modified. The husband countered with a motion for modification of the custody and support provisions of the decree and that plaintiff be found in contempt. The motions came on together. Defendant was found guilty of contempt and sentenced to three days in jail, but sentence was suspended on condition that he return the children to plaintiff’s custody. Defendant’s motion was dismissed upon plaintiff’s application. The order made by the court on May 11, 1961, which disposed of these matters, also ordered defendant to pay to counsel for plaintiff “for services herein” the sum of $150 in installments. Of course, this award covered services upon both motions. Defendant appealed from same.

Plaintiff moved this court for dismissal of the appeal on December 13, 1962, based on the fact that the record was incomplete. The court dismissed the appeal as to the contempt phase of the order, which is not appealable. (Code Civ. Proc., § 1222; Tripp v. Tripp, 190 Cal. 201, 202 [211 P. 225].) The motion to dismiss was denied as to the award of attorney fee.

Defendant claims that error was committed in that plaintiff did not make a showing of necessity that defendant pay her attorney fees in order for her to prosecute her suit. “These allowances are not a matter of absolute right. They [339]may be granted in the sound discretion of the trial court, but section 137 [now Civ. Code, § 137.3] does not empower the court to award temporary support and suit money except upon a finding of necessity. ... If she possesses independent means sufficient for these purposes the allowances should not be granted. (Mudd v. Mudd, supra [98 Cal. 320 (33 P. 114)].) ” (Loeb v. Loeb, 84 Cal.App.2d 141, at p. 144 [190 P.2d 246].)

“ The motion for the allowance of counsel fees and costs in a divorce action is addressed to the sound discretion of the trial court, and in the absence of a clear showing of abuse, its determination will not be disturbed on appeal. [Citation.]

It is likewise settled that the trial court is under no duty to require the wife to exhaust her separate capital before ordering the husband to pay her costs and attorney's fees on appeal from a decree in a divorce action.” (Primm v. Primm, 46 Cal.2d 690, at p. 696 [299 P.2d 231].)