Di Grandi v. Di Grandi

• Decision Date: 21 February 1951
• Docket Number: No. 14835,14835
• Court: California Court of Appeals Court of Appeals
• Parties: DI GRANDI v. DI GRANDI et al.

Page 841

227 P.2d 841

102 Cal.App.2d 442

DI GRANDI v. DI GRANDI et al.

No. 14835.

District Court of Appeal, First District, Division 1, California.

Feb. 21, 1951.

Sefton & Quattrin, San Francisco, for appellant.

Krinsky & Abraham, Harold J. Abraham, Oakland, for respondent.

BRAY, Justice.

Motion by defendant Tom Di Grandi to dismiss appeal by plaintiff from judgment and order denying new trial in a divorce action, on the ground that plaintiff has waived her right to appeal by the voluntary acceptance of the benefit of the judgment.

Question Presented.

Is the amount of attorneys' fees awarded to the wife's attorneys in a judgment granting a divorce to the husband and awarding him 75% of the community property, an inseparable part of the judgment?

Record.

Plaintiff wife filed an action for separate maintenance. Defendant husband cross-complained for a divorce on the grounds of extreme cruelty. After a protracted trial the court entered a judgment granting the defendant the divorce, awarded 25% of the community property to plaintiff, 75% to defendant, and attorneys' fees of $2500 to the attorneys for the wife, to be adeducted and paid forthwith out of the community property. The plaintiff's motion for a new trial was denied. Pending the hearing of that motion, plaintiff's attorneys caused a writ of execution to be issued on the award to them. Pursuant to the writ defendant paid the said sum of $2500 to the sheriff. Thereafter plaintiff appealed from the whole of said judgment and from the order denying a new trial. ¹ Defendant filed in this court a notice of motion to dismiss the appeal on the ground that by satisfying the judgment as to attorneys' fees plaintiff had accepted the benefit of the judgment and is thereby precluded from proceeding with the appeal. Thereafter, both plaintiff and the attorneys in favor of whom the award was made filed affidavits waiving any right to appeal from that portion of the judgment.

Is the Attorneys' Fees Award Inseparable?

In divorce or separate maintenance proceedings, where the court grants attorneys' fees, it in its discretion may make such fees payable 'to the attorney entitled thereto, and judgment may be entered and execution levied accordingly.' Civil Code, § 137.5. Notwithstanding that the fees may now be made directly payable to the attorney, they are granted to the wife for her benefit, and the right of the attorney is derived from the client, and he has no greater right than the client would have. Weil v. Superior Court, 97 Cal.App.2d 373, 376, 217 P.2d 975. Voluntary acceptance of the benefit of a judgment is a bar to the prosecution of the appeal therefrom. Swallers v. Swallers, 89 Cal.App.2d 458, 201 P.2d 23.

The case of Weil v. Weil, 100 Cal.App.2d ----, 224 P.2d 460, is practically determinative that the award of attorneys' fees is a separable part of the judgment here. While he Supreme Court has granted a hearing in the case, the reasoning in it is so logical and reasonable that we adopt it. In that case the husband filed an action for divorce against the wife on the ground of cruelty. She cross-complained, seeking a decree of separate maintenance, and other relief. At the trial, on what the appellate court held to be the erroneous insistance of the trial judge, she amended her cross-complaint to ask for a divorce. An interlocutory decree was entered granting her a divorce, $300 per month support for 30 months, certain jewelry and furs, and attorneys' fees in the sum of $6000, payable in three equal installments 30 days apart. As here, the award was made directly to her attorneys. She appealed from this decree, from an order denying attorneys' fees on motion for a new trial and from an order denying attorneys' fees on the appeal. Proceedings to force payment of the attorneys' fees by contempt proceedings were brought. See Weil v. Superior Court, supra, 97 Cal.App.2d 373, 217 P.2d 975, and Weil v. Weil, 97 Cal.App.2d 378, 217 P.2d 979. The wife accepted payment of one or more installments of support and a part payment had been made on the attorneys' fees. On the appeal, the husband contended that the wife had waived her right to appeal, among other grounds, by accepting support and attorneys' fees. The court stated, 100 Cal.App.2d, ----, 224 P.2d 467: 'The acceptance of support money and attorney's fees which were rightfully hers did not operate to waive her right of appeal. A similar situation arose in Browning v. Browing, 208 Cal. 518, 282 P. 503, where the court said that the wife, who had been successful in the action yet had appealed from portions of the judgment with which she was dissatisfied, was entitled to the amounts allowed for her support and attorneys' fees regardless of the outcome of her appeal; that the receipt by the wife of the sums of money which she had received under the terms of the judgment would not defeat her right to maintain her appeal from portions of the judgment; and even if she should be unsuccessful on the appeal she would still have been entitled to receive from her husband the sums which she actually had received. The court pointed out that it is only in cases where an appellant has received and accepted advantages from the judgment to which she would not be entitled in the event of a reversal of the judgment that her acceptance there operates to defeat the appeal. In the instant case there is no question as to defendant's right to attorney's fees for the conduct of the trial and plaintiff stipulated that she was entitled to support money pending appeal. The order for support pending appeal was made effective as of November 1, 1948, the date of entry of the decree. Hence defendant did not receive at any time an amount greater than the court had declared on three occasions to be necessary for her support.' The court then refers to two cases in other jurisdictions to the effect that a plaintiff who accepts the benefits of a judgment awarded to him is not estopped from appealing from unfavorable portions of the judgment where a modification or reversal of the judgment could not affect his right to the benefits he had taken. These cases are Cunningham v. Cunningham, 60 Nev. 191, 102 P.2d 94, 105 P.2d 398, and Bass v. Ring, 210 Minn. 598, 299 N.W. 679, 169 A.L.R. 980. Thus, in our case, whether plaintiff is successful on her appeal in reversing those portions of the judgment which granted the divorce and 75% of the community property to the husband, or not, she was 'entitled to attorneys' fees for the conduct of the trial, the amount of which the court determined and specified in the judgment.' Weil v. Weil, supra, 224 P.2d 467. Defendant relies on Storke v. Storke, 132 Cal. 349, 64 P. 578, and McCaleb v. McCaleb, 32 Cal.App. 648, 163 P. 1045, just as the plaintiff did in Weil v. Weil, supra, 224 P.2d 460. Concerning those cases the court there said, 224 P.2d at page 468:

'Both decisions are distinguishable from the instant case just as they were distinguished by the Supreme Court in Browning v. Browning, supra, 208 Cal. 518, 282 P. 503. In the Storke case the trial court had granted a decree of divorce to the husband on account of the wife's extreme cruelty, from which decree she appealed although she had received and retained the support money and attorney's fees awarded to her. The court pointed out that if she succeeded in obtaining a new trial she would have received money which she might not be able to return. * * * In the McCaleb case each party had sought a divorce. The court did not grant a decree to either but the wife was awarded support as long as the parties lived apart. The wife moved for a new trial after accepting payments for her support and the husband appealed from the order refusing to dismiss her motion for a new trial. The court confessed it was unable to reconcile Storke v. Storke with the later case of First National Bank v. Wakefield, 138 Cal. 561, 72 P. 151, but determined to follow the precedent established by the former. In First National Bank v. Wakefield, supra, the court referred to the language in the Storke case to the effect that if all provisions of a judgment are connected and dependant so that one part cannot be reversed without reversal of the whole, a party cannot enforce the portion of the judgment in his favor and appeal from that which is against him; but where the provisions of the judgment are not so interdependent that a part of the judgment cannot be set aside without a reversal of the entire judgment the party may appeal from the adverse portion of the judgment while accepting the part in his favor. * * *

'In Browning v. Browning, 208 Cal. at page 525, 282 P. at page 506, pointing out that a divorce had been granted to the wife, the court distinguished Storke v. Storke, supra, and McCaleb v. McCaleb, Supra, on the ground that 'in each of these cases the very question at issue upon the appeal was as to whether or not the appellant was entitled to a divorce at...