Marriage of Harbach, In re

• Decision Date: 26 June 1975
• Parties: In re the MARRIAGE OF Fay C. and William O. HARBACH. Fay C. HARBACH, Petitioner and Appellant, v. William O. HARBACH, Respondent. Civ. 44780.
• Court: California Court of Appeals Court of Appeals

Page 518

122 Cal.Rptr. 518

49 Cal.App.3d 405

In re the MARRIAGE OF Fay C. and William O. HARBACH Fay C. HARBACH, Petitioner and Appellant, v. William O. HARBACH, Respondent.

Civ. 44780.

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

June 26, 1975.

As Modified July 23, 1975.

George M. Goffin, Hollywood, for petitioner and appellant.

Arthur J. Crowley, Howard E. Blumenthal, Hollywood, for respondent.

ALLPORT, Acting Presiding Justice.

On April 9, 1973, wife filed a petition seeking dissolution of marriage and, inter alia, spousal support, attorney's fees and costs. Pursuant to an order to show cause filed January 17, 1974, she sought spousal support, temporary attorney's fees, temporary accountant's fees and costs pendente lite. Following a hearing on the order to show cause, the following order was made:

'Petitioner's request for spousal support, attorney's fees, accountant's fees and costs pending trial is denied.

There is reserved to the trial court jurisdiction to fix and determine attorney's fees, accounting fees and costs from the commencement of the rendition of such legal and accounting services based on the facts appearing at the time of trial.'

On April 3, 1974, wife filed a notice of appeal from that order contending that the court erred in failing to provide for spousal support, attorney's and accountant's fees and costs pendente lite.

The purported appeal must be dismissed. Code of Civil Procedure section 904.1 authorizes an appeal from an interlocutory judgment of dissolution of marriage but makes no provision for an appeal from an order denying spousal support, fees and costs pendente lite. The record before us fails to disclose that any judgment, interlocutory or final, has been entered. ¹ Civil Code section 4357 provides that the trial court 'may' order payment of spousal support during pendency of the proceeding but such an order is not made mandatory by the statute and is subject to modification at any time. The matter of spousal support, fees and costs must be determined at time of trial pursuant to the petition for dissolution and may be reviewed on appeal from the judgment. An arbitrary refusal to make an appropriate order for such support, fees and costs may be attacked by use of the prerogative writ procedure provided in Code of Civil Procedure sections 1084 et seq. and 1102 et seq. (Newlands v. Superior Court, 171 Cal. 741, 154 P. 829, cf. Bain v. Superior Court, 36 Cal.App.3d 804, 111 Cal.Rptr. 848.) The purported appeal from the order in the instant case must be dismissed.

In so ruling we are not unaware of a number of early cases wherein it is indicated that such an order is appealable. In Lincoln v. Superior Court, 22 Cal.2d 304, 139 P.2d 13 on application for a writ of mandate we find at page 310, 139 P.2d 13 language indicating an order denying an application for temporary support and costs to be tantamount to a final judgment. Lincoln cites Robbins v. Mulcrevy, 101 Cal.App. 300, 301, 281 P. 688 and Biltmore Drug Store v. Superior Court, 101 Cal.App. 363, 365, 281 P. 710 in support of the statement. We note that Robbins and Biltmore were both before the court pursuant to extraordinary writ procedures. In Greene v. Superior Court, 55 Cal.2d 403, 405, 10 Cal.Rptr. 817, 359 P.2d 249 another writ case, Lincoln, supra, is cited in support of the statement that such an order is directly appealable. (See also Moore v. Superior Court, 8 Cal.App.3d 804, 809, 87 Cal.Rptr. 620 and Rose v. Rose, 175 Cal.App.2d 585, 591, 346 P.2d 460.) We do not deem those cases controlling of our decision herein. They present no rationale nor authority supporting a conclusion that the instant order should in fact be appealable. In none do we have an attempt to appeal directly from an order denying temporary support, fees and costs. None hold such appealable under section 904.1. To render support orders pendente lite directly appealable would, in this day and age, pose an insurmountable burden upon the appellate court system. Section 904.1 affords a review by way of appeal from the interlocutory judgment as well as the final judgment. The prerogative writ procedure is available in...