Vishner v. Vishner
| Decision Date | 01 June 1954 |
| Citation | 125 Cal.App.2d 667,271 P.2d 68 |
| Court | California Court of Appeals Court of Appeals |
| Parties | VISHNER v. VISHNER. Civ. 20150. |
Stanley Fleishman, Nolan H. Tepper, Hollywood, for appellant.
Ellis D. Reiter, Los Angeles, for respondent.
This is an appeal from an order 'denying appellant suit money to prosecute her action for divorce and to cancel a property settlement agreement'. Appellant's brief further states: .
The parties hereto were married on July 25, 1952 and separated about November 3, 1952 after having entered into a property settlement agreement on October 4, 1952. On December 12, 1952 respondent husband instituted an action for divorce or annulment. The appellant wife did not file a timely answer and on April 6, 1953 the husband obtained an interlocutory decree of divorce, which did not incorporate the property settlement agreement.
On May 6, 1953 appellant wife filed an independent action for divorce and cancellation of the settlement agreement, requesting suit money. Respondent husband then filed a cross-complaint for declaratory relief concerning legal rights and duties under the settlement agreement. In connection with the wife's divorce action, an order to show cause in re attorney fees, costs and alimony pendente lite, was obtained. On the hearing thereof, Commissioner Brock limited the testimony to the question whether the parties had become reconciled after the husband's interlocutory divorce had been obtained, and after taking the case under submission, found that no reconciliation had taken place. The order denying relief states: . No inquiry or determination was made concerning the husband's ability to pay, nor as to what amount was reasonably necessary to enable the wife to maintain the action.
It is appellant's contention that 'In spite of the fact that appellee had obtained an interlocutory decree of divorce against appellant approximately one month prior to the time she filed her complaint, her action falls within Civil Code Section 137.3. * * *: 'During the pendency of any action * * * for divorce * * * upon an order to show cause or motion and if such relief is requested in the complaint * * * 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 * * *'.
The position taken in respondent's brief is that 'The Interlocutory Decree procured by respondent in the previous divorce proceeding between these parties is res judicata', and that the trial court, having found that no reconciliation took place, was correct in refusing to require the husband to pay attorney fees, etc. It is conceded, however, that
In limiting the testimony at the hearing of the order to show cause to the question whether a...
To continue reading
Request your trial
-
Cochran v. Cochran
...Cal.App.2d 641, 643--644, 49 Cal.Rptr. 57; Nacht v. Nacht, supra, 167 Cal.App.2d 254, 268, 334 P.2d 275; and Vishner v. Vishner (1954) 125 Cal.App.2d 667, 669--670, 271 P.2d 68.) Vishner v. Vishner, supra , indicates that the wife on proper showing would have been entitled to attorney's fee......
-
Strater v. Strater
...v. Mitchell, 112 Me. 416-419, 92 A. 492, 493. The right to attorney's fees is dependent upon the statutory provisions. Vishner v. Vishner, 125 Cal.App.2d 667, 271 P.2d 68; Maston v. Maston, 171 Kan. 112, 229 P.2d 756; Fordice v. Fordice, 126 Ind.App. 562, 132 N.E.2d Mrs. Strater consulted h......
-
Nacht v. Nacht
...the present case, and for similar reasons it should be held that the award of such costs and fees was proper. See also Vishner v. Vishner, 125 Cal.App.2d 667, 271 P.2d 68. It is also urged by the husband that the evidence does not support the challenged award. This contention is without mer......
-
Ojena v. Ojena
...to disallow it, citing section 137.3 of the Civil Code; Spreckels v. Spreckels, 111 Cal.App.2d 529, 244 P.2d 917; Vishner v. Vishner, 125 Cal.App.2d 667, 271 P.2d 68; and Dexter v. Dexter, 42 Cal.2d 36, 44, 265 P.2d It has been repeatedly held that a motion for allowance of costs and counse......