Simon v. Simon

• Decision Date: 29 March 1968
• Citation: 260 Cal.App.2d 636,67 Cal.Rptr. 323
• Court: California Court of Appeals Court of Appeals
• Parties: Ida SIMON, Plaintiff and Appellant, v. Joseph SIMON, Defendant and Respondent. Civ. 32506.

Page 323

67 Cal.Rptr. 323

260 Cal.App.2d 636

Ida SIMON, Plaintiff and Appellant, v. Joseph SIMON, Defendant and Respondent.

Civ. 32506.

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

March 29, 1968.

Rehearing Denied April 24, 1968.

Hearing Denied May 22, 1968.

Brock & Rykoff, and Robert L. Brock, Beverly Hills, for plaintiff and appellant.

David S. Smith, Beverly Hills, for defendant and respondent.

FOURT, Associate Justice.

This is an appeal by plaintiff from an order 'denying her motion for attorney's fees and costs on appeal.'

Plaintiff herein brought an action for divorce. A decree was granted to each of the parties and plaintiff appealed from the judgment. This court on this date has disposed of that appeal in Cal.App., 67 Cal.Rptr. 317. Therein we stated the facts and other pertinent matters and no useful purpose could be served in restating or repeating what is there set forth. After judgment plaintiff petitioned the court for attorney's fees and costs on appeal, for alimony pending appeal and for a restraining order or the appointment of a receiver pending appeal. Plaintiff filed a declaration in support of her petition and as might be expected defendant filed a declaration which in large part contradicted the statements by plaintiff and particularly with reference to the ability of the respective parties to pay any money. At the hearing, both the petitioner-plaintiff and the defendant testified further. The motions were argued and the court denied plaintiff's requests. Plaintiff filed her notice of appeal from the order as heretofore indicated. In her brief she has made no reference to the denial of alimony pending appeal and to her request for the appointment of a receiver or a restraining order and consequently we assume that she either has withdrawn or abandoned any contention with reference to such items.

The sole question for disposition on this appeal is whether the trial judge abused the judicial discretion lodged with him under the law. (See § 137, Civ.Code.)

It is appropriately stated in Kellett v. Kellett, 2 Cal.2d 45, at pp. 48--49, 39 P.2d 203, at p. 205: 'It is well settled that the granting of alimony and costs pending appeal rests in the sound discretion of the trial court and its action relative to an application therefor will not be disturbed by a reviewing court unless it is shown that the court has abused such discretion. (Citation.) While it is within the power of a trial court after an appeal from a judgment granting the husband a divorce to allow to the wife costs and alimony pending the appeal (citation), the right of the defeated wife to prosecute her appeal at the expense of her husband is not an absolute right. (Citation.) Furthermore, it was held in that case (p. 656) that, 'where the trial court is satisfied from the record before it, that the proposed appeal is not taken in good faith, or with reasonable belief that it has merit (citation), the application should be denied' .' Further that: 'In passing upon the trial court's denial of plaintiff's motion for costs on appeal and for maintenance pending appeal, it is proper to take into consideration not only the particular action that was then before the court but other proceedings before said court relative to the marital and property rights of the parties hereto.'

The trial judge in this case, as in Kellett, undoubtedly took into consideration the history of the litigation between the parties and other matters disclosed in the main case. The judge may well have questioned the good faith of plaintiff in taking said appeal or at the least may have been of the opinion that she had no reasonable belief in its merits. Kellett, supra, 2 Cal.2d at p. 49, 39 P.2d at p. 205, states, 'In these circumstances it was within its discretion to deny the application of plaintiff for funds to prosecute the appeal.' (See also Stewart v. Stewart, 156 Cal. 651, 656, 105 P. 955.)

In Hunter v. Hunter, 202 Cal.App.2d 84, 92, 20 Cal.Rptr. 730, 734 the court stated:

'The granting or denial of counsel fees on appeal in divorce litigation is within the sound discretion of the trial court and an order made either way will not be reversed in the absence of an abuse of discretion. (Citations.)

'The law's purpose in allowing attorney's fees and costs to a wife who has not sufficient monies to meet such expenses is to assure to women...