Gottlieb v. Gottlieb

• Decision Date: 04 December 1957
• Court: California Court of Appeals Court of Appeals
• Parties: Rith GOTTLIEB, Plaintiff and Appellant, v. Robert J. GOTTLIEB, Eugene I. Gottlieb; Security-First National Bank of Los Angeles, Fifth and Spring Street Branch, Defendants, Robert J. Gottlieb, Respondent. Civ. 22332.

Page 763

318 P.2d 763

155 Cal.App.2d 715

Rith GOTTLIEB, Plaintiff and Appellant, v. Robert J. GOTTLIEB, Eugene I. Gottlieb; Security-First National Bank of Los Angeles, Fifth and Spring Street Branch, Defendants, Robert J. Gottlieb, Respondent.

Civ. 22332.

District Court of Appeal, Second District, Division 3, California.

Dec. 4, 1957.

Hahn, Ross & Saunders, Los Angeles, for appellant.

Robert J. Gottlieb, in pro. per.

VALLEE, Justice.

Appeal from an order granting defendant's motion to dismiss an order directing him to show cause why he should not pay plaintiff's attorneys' fees and costs in an action brought against her by defendant for alleged malicious abuse of process.

In this divorce action plaintiff was granted an interlocutory decree on April 24, 1953. A property settlement agreement is set out verbatim in the interlocutory decree. A final decree was entered on May 6, 1954. On July 20, 1956, plaintiff filed in the divorce action an affidavit for a writ of execution in which she stated that $10,875 had accrued under the provisions of the interlocutory decree, that $10,500 had been paid, and that 'there is still due, owing and unpaid the sum of $375.' An order was made that execution issue in the sum of $250 in favor of plaintiff. Execution issued and the sheriff took possession of defendant's automobile. Defendant paid the sheriff $266.69 which included $14.69 fees and expenses, and on July 27, 1956, the sheriff paid $252 to plaintiff's attorneys.

On July 25, 1956, defendant filed an action against plaintiff for malicious abuse of process. He alleged that on July 20, 1956, the day plaintiff filed the affidavit for a writ of execution, he was not in arrears in payments to plaintiff in any sum but that in fact he had paid more money to her than he was required to pay under the interlocutory decree; he alleged the issuance of the writ of execution, the levey, that the acts of plaintiff were malicious, and damage.

On July 30, 1956, on application of plaintiff, defendant was ordered to show cause why he should not be required to pay plaintiff's attorneys' fees and costs in defending the action for malicious abuse of process. When the order to show cause came on for hearing, on motion of defendant it was dismissed without a hearing. Plaintiff appeals from the order of dismissal.

The first question is: Did the court have the power under Civil Code, section 137.3, to award plaintiff attorneys' fees and costs for the purpose of defending the action for malicious abuse of process? Section 137.3 in pertinent part reads:

'During the pendency * * * of any action for divorce * * * the court may order the husband * * * to pay such amount as may be reasonably necessary for the cost of maintaining or defending the action and for attorney's fees * * *; and from time to time and before entry of judgment, the court may augment or modify the original award, if any, for costs and attorney's fees as may be reasonably necessary for the prosecution or defense of the action or any proceeding relating thereto. In respect to services rendered or costs incurred after the entry of judgment, the court may award such costs and attorney's fees as may be reasonably necessary to maintain or defend any subsequent proceeding therein, whether or not such relief was requested in the complaint, cross-complaint or answer, and may thereafter augment or modify any award so made. * * *'

Section 137.3 distinguishes between services rendered and costs incurred prior to the entry of judgment and services rendered and costs incurred after the entry of judgment. In respect to services rendered and costs incurred prior to the entry of judgment, the court may award such attorney's fees and costs as may be reasonably necessary for the prosecution or defense of the action 'or any proceeding relating thereto.' In respect to services rendered and costs incurred after the entry of judgment, the court may award such attorney's fees and costs 'as may be reasonably necessary to maintain or defend any subsequent proceeding therein.' The proceeding at bar was long after the entry of the final decree of divorce. However, the cases seem to have ignored the distinction made by the statute.

Plaintiff relies on Lerner v. Superior Court, 38 Cal.2d 676, 242 P.2d 321, and cases cited therein. That case was a proceeding to prohibit the superior court from modifying a final decree with respect to the custody of a minor in a divorce action. Application was made to the Supreme Court for attorney's fees for services rendered and costs incurred in the prohibition proceeding. The Supreme Court stated (38 Cal.2d at page 685, 242 P.2d at page 326):

'Section 137.3 is a recodification of the first sentence of former Civil Code, § 137. It was settled under section 137 that the phrase therein, 'When an action for divorce is pending,' embraced many diverse proceedings growing out of the divorce action and arising after entry of the final decree. Wilson v. Wilson, 33 Cal.2d 107, 115, 199 P.2d 671 (proceeding to enforce distribution of community property); Reynolds v. Reynolds, 21 Cal.2d 580, 585, 134 P.2d 251 (modification of allowance for child support); Lamborn v. Lamborn, 190 Cal. 794, 796, 214 P. 862 (motion to modify alimony); Grannis v. Superior Court, 143 Cal. 630, 633, 77 P. 647 (motion to set aside final decree under Code Civ.Proc., § 473); Kohn v. Kohn, 95 Cal.App.2d 722, 724, 214 P.2d 80 (construction of property settlement); Parker v. Parker, 22 Cal.App.2d 139, 142, 70 P.2d 1003 (mandamus to enter judgment for delinquent alimony); Moore v. Gosbey, 130 Cal.App. 70, 73, 19 P.2d 995 (motion to modify alimony, made ten years after final decree); see cases collected in McDonald v. McDonald, 218 P.2d 929, 15 A.L.R.2d 1270.

'On principle, there is no difference between actions in which a woman is compelled by her former husband to resist by an appeal a proceeding brought by him to modify a custody or alimony award and actions in which she is compelled to seek prohibition to prevent improper modification of such awards. In either case she may be unable to retain counsel to represent her, and the policy underlying section 137.3 and the cases above cited are controlling.'

Thus it appears that the prohibition proceeding was directly related to and grew out or arose out of the divorce action in the trial court. Gantner v. Gantner, 38 Cal.2d 691, 693, 242 P.2d 329. The former wife was compelled to seek prohibition to prevent improper modification of an award in the divorce action.

The facts in the cases cited in the Lerner opinion are not analogous to the facts in the present case. In Wilson v. Wilson, 33 Cal.2d 107, 199 P.2d 671, the proceeding for which attorney's fees were...