Gonzales v. Gonzales

[342]Opinion

REGAN, J. This is an appeal from that portion of an order pendente lite wherein the trial court awarded the wife’s (Kathleen) attorney $7,500 in fees and $1,000 on account of costs for the prosecution of her action for separate maintenance and for the defense of the husband’s (Albert) action for dissolution.1 The sole issue on this appeal is whether the trial court abused its discretion in making this award.

Kathleen and Albert were married on June 23, 1962. There are two minor children of the marriage. On February 13, 1974, Kathleen filed a petition (re marriage) against Albert requesting legal separation, custody of the children, child support, spousal support, division of the community property and attorneys’ fees and costs.

On that same date, Kathleen also obtained an order to show cause for certain pendente lite orders including temporary custody subject to reasonable visitation rights, $1,000 per month child support for the two children, $500 per month spousal support, $7,500 attorneys’ fees and $1,000 court costs.

On February 14, 1974, Albert filed his response (re marriage) requesting a dissolution of the marriage, division of the community property and confirmation of his own separate property (to be discussed infra). He consented to the'award of custody of the children (and child support) to Kathleen, but objected to spousal support, attorneys’ fees and costs. On February 21, 1974, at the hearing on the order to show cause, Albert consented to pay $300 for child support and $150 for attorneys’ fees.

The property of the marriage is insignificant. However, on November 27, 1973 (after the parties were separated), a judgment was returned in favor of Albert in the Sacramento County Superior Court for the approximate amount of $3.2 million in a medical malpractice and fraud lawsuit. One of the defendants has paid Albert and his counsel $500,000 in partial settlement. Kathleen’s principal object in the instant litigation is to establish a community property interest in this recovery and judgment, despite Civil Code section 5126.

[343]