Rosenthal v. Rosenthal

• Decision Date: 24 November 1961
• Citation: 17 Cal.Rptr. 186,197 Cal. App. 2d 289
• Court: California Court of Appeals
• Parties: Ruth B. ROSENTHAL, Plaintiff, Cross-Defendant and Respondent, v. Jerome B. ROSENTHAL, Defendant, Cross-Complainant and Appellant. Div. 25115, 25340, 24688.

Page 186

17 Cal.Rptr. 186

197 Cal.App.2d 289

Ruth B. ROSENTHAL, Plaintiff, Cross-Defendant and Respondent, v.Jerome B. ROSENTHAL, Defendant, Cross-Complainant and Appellant.

Div. 25115, 25340, 24688.

District Court of Appeal, Second District, Division 2, California.

Nov. 24, 1961.

Hearing Denied Jan. 17, 1962.

Dorothy K. Davis, Beverly Hills, for appellant.

Crowley & Rhoden, by Horace A. Ruderman, Los Angeles, for respondent.

ASHBURN, Justice.

Three appeals are presented concurrently in this divorce action.Since March, 1959, the parties have engaged in spirited litigation which, so far as the record discloses and as was conceded upon oral argument, had not yet eventuated in an interlocutory judgment.Appeal No. 25115 challenges an allowance of additional attorney fees of $17,000 and $587.95 costs made on March 21, 1960.No 25340 is an appeal from an order of September 12, 1960, modifying a former order of June 5, 1959, to require payment by defendant to plaintiff of additional support money in the sum of $75 a week.No. 24688 assails an order of October 30, 1959, directing a trustee to pay certain sums of money out of a sum of $1,200 previously deposited with him in trust pursuant to stipulation.There have been three previous appeals by defendant from orders made in this cause, two applications in the District Court of Appeal for prohibition and one for mandamus, all of which special writs were denied.

We preface our discussion of these appeals with a quotation of Mr. Justice Vallee's remarks in Overton v. Vita-Food Corp., 94 Cal.App.2d 367, 370, 210 P.2d 757, 759: 'With rhythmic regularity it is necessary for us to say that where the findings are attacked for insufficiency of the evidence, our power begins and ends with a determination as to whether there is any substantial evidence to support them; that we have no power to judge of the effect or value of the evidence, to weigh the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.No one seems to listen.'AppealNo. 25115.

Most of appellant's arguments upon this appeal may be disposed of by reference to the foregoing quotation and the fact that they invite a re-evaluation of the evidence by a court of review.We reiterate certain principles that we stated in Davis v. Lucas, 180 Cal.App.2d 407, 409, 4 Cal.Rptr. 479, 480: 'The appellate court starts with the presumption that the evidence sustains each finding of fact [citations], and the burden rests upon appellant'to demonstrate that there is no substantial evidence to support the challenged findings.'[Citations.]To this end appellant must set forth in his brief all material evidence upon the point, not merely his own proofs [citations]; if this is not done the point is deemed waived * * *.'[A] claim of insufficiency of the evidence to justify findings, consisting of mere assertion without a fair statement of the evidence, is entitled to no consideration, when it is apparent, as it is here, that a substantial amount of evidence was received on behalf of the respondents.'[Citation.]In the circumstances we are entitled to accept the statements of respondent's brief as to the evidence upon the subject.* * * We do not make an independent search of the record to uncover error.'

On June 5, 1959, an order was made directing defendant to pay to plaintiff $75 a week for her support, also the sum of $3,500 'on account as attorney's fees.'On August 31, 1959, plaintiff gave notice of motion to be made on September 4, 1959, for an order 'granting Plaintiff further and additional attorney's fees on account.'The stated grounds were 'that defendantJerome B. Rosenthal has by his harassment, delay and efforts to thwart the process of this Court caused an undue and uncontemplated amount of effort and work upon the part of Plaintiff and her attorneys, and upon the further grounds that this Court ordered and directed Defendant to pay the reasonable cost of any necessary audit required by Plaintiff, and that Defendant has failed and refused Plaintiff access to the books, files and records of the community herein and of Jerome B. Rosenthal, individually and has prevented Plaintiff from proceeding with her audit as directed by this Court.'The motion was to be based on the notice, the pleadings, records and files, the declaration of Horace A. Ruderman(one of plaintiff's attorneys) and oral and documentary evidence to be presented upon the hearing.The Ruderman declaration set forth with some particularity 'extraordinary and uncontemplated proceedings and efforts * * * necessitated by reason of the actions and demeanor of defendant in this action.'It also declared that defendant had refused to give plaintiff's auditor or attorney access to his books and records and that 'Plaintiff will be required to prepare complete and exhaustive surveys of the community situation to determine whether or not further steps, including the possibility of a receiver might not be required in the instant matter.'The hearing was not reached until February 23, 1960, and was not concluded until March 21, 1960.

I.Appellant's first point is that the court erred in receiving evidence of services rendered by plaintiff's attorneys after the date of the notice of motion, and in refusing to strike the same.As the motion sought merely an additional allowance on account, we see no error in the court's ruling.Section 137.3, Civil Code, provides: 'Attorney's fees and costs within the provisions of this section may be awarded for legal services rendered or costs of action incurred prior, as well as subsequent, to any application or order of court therefor, including services rendered or costs incurred prior to the filing of the complaint.'It covers past and future services and authorizes allowance of such amount 'as may be reasonably necessary for the cost of maintaining * * * the action and for attorney's fees.'

True, the motion must be upon notice which fairly advises the opponent of what he will have to meet.This notice did do that.If defective, we would not be disposed to reverse for the hearing consumed 16 court days and there is no showing of prejudice suffered by defendant from any alleged insufficiency of the notice.Pertinent here is the following passage from Foster v. Foster, 147 Cal.App.2d 338, 342, 305 P.2d 152, 155, which quotes Rose v. Rose, 109 Cal. 544, 546, 42 P. 452: "In taking the evidence for the purpose of fixing the amount of the allowance, the court is not trying an issue in the case, but is seeking for information as the basis of its order, and is not bound by the technical rules of evidence applicable to controversies between contesting litigants.'And 109 Cal. at pages 545-546, 42 P.2d 452, the court said: 'The court cannot know at the commencement of the action the amount of labor that will be required, or the value of the services to be performed, in the prosecution or defense of the action on behalf of the wife, and there is no rule of procedure which requires it to fix the entire amount of counsel fees at the beginning of the action, or to prevent it from making allowances from time to time as the exigencies of the case shall seem to demand."To same effect, see, Youree v. Youree, 1 Cal.App. 152, 155-156, 81 P. 1023;Busch v. Busch, 99 Cal.App. 198, 202, 278 P. 456.

Having endeavored to limit plaintiff's evidence to August 31, 1959(date of notice of motion) as the latest cut off, appellant then turns to the original order of June 5, 1959, as the earliest limit, thus confining plaintiff's proofs to the brief period of less than three months intervening between June 5 and August 31.Espousal of June 5 as the earliest limit rests upon an assumed pertinence of the doctrine of res judicata.

No Res Judicata.

Appellant's claim of res judicata is misplaced.An order made on a motion is not res judicata in the same sense as a judgment; it is conclusive only upon matters specifically passed upon, not those which might have been presented but were not.Cooper v. Miller, 165 Cal. 31, 35, 130 P. 1048, 1050: 'That a decision of a court upon an order such as this may, in proper cases, be pleaded as res adjudicata is unquestioned.Lake v. Bonynge, 161 Cal. 120, 118 Pac. 535.But it is res adjudicata only upon the matters adjudicated under the motion * * *.'Accord: Bannon v. Bannon, 270 N.Y. 484, 1 N.E.2d 975, 977, 979;Jason v. Abramowitz, Sup., 75 N.Y.S.2d 781, 783;Baranowitz v. Baranowitz, 13 Misc.2d 404, 176 N.Y.S.2d 856, 860;Hill v. United States, 298 U.S. 460, 466, 56 S.Ct. 760, 80 L.Ed. 1283;60 C.J.S.Motions and Orders§ 65, pp. 81-82.See, also, Becker v. Pine, 193 Misc. 108, 83 N.Y.S.2d 749.

In the instant case the allowance for attorney fees was expressly made 'on account.'That phrasing effects an implied reservation for later determination of the question whether a larer sum should be awarded.(Hellman v. Hellman, 108 Cal.App.2d 588, 594, 239 P.2d 458;Huntington v. Huntington, 120 Cal.App.2d 705, 712, 262 P.2d 104;Griffin v. Griffin, 122 Cal.App.2d 92, 100-101, 264 P.2d 167.)In the Huntington casethis court said, 120 Cal.App.2d at page 713, 262 P.2d at page 109: 'The phrase 'on account' could have no other reasonable meaning than that the allowance of $6,000 would be supplemented if the services actually rendered should justify a further award.'Clearly 'on account' leaves no room for application of the doctrine of res judicata.Any other conclusion would be directly in the teeth of § 137.3,Civil Code, which expressly authorizes the court from time to time before entry of judgment to 'augment or modify the original award.'

Cases cited by appellant, such as Ojena v. Ojena, 154 Cal.App.2d 440, 316 P.2d 414;Barker v. Barker, 139 Cal.App.2d 206, 293 P.2d 85, andHardy v. Hardy, 117 Cal.App.2d 86, 255 P.2d 85, are not pertinent.They are to the effect that an allowance should not be...