Washington v. Washington

• Decision Date: 25 August 1958
• Citation: 163 Cal.App.2d 129,329 P.2d 115
• Court: California Court of Appeals Court of Appeals
• Parties: Leola WASHINGTON, Plaintiff and Respondent, v. George WASHINGTON, Defendant and Appellant. Civ. 17855.

Page 115

329 P.2d 115

163 Cal.App.2d 129

Leola WASHINGTON, Plaintiff and Respondent, v. George WASHINGTON, Defendant and Appellant.

Civ. 17855.

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

Aug. 25, 1958.

Rehearing Denied Sept. 24, 1958.

Hearing Denied Oct. 22, 1958.

Edward D. Mabson, San Francisco, for appellant.

Terry A. Francois, San Francisco, Carl B. Metoyer, Berkeley, for respondent.

DOOLING, Justice.

Defendant appeals from an order for attorney's fees and costs to enable plaintiff to resist two appeals taken by defendant from two orders in plaintiff's favor.

A final decree of divorce was entered herein on May 11, 1951. By the terms of that judgment, which has long since become final, the custody of the minor child of the parties was awarded to plaintiff but no order for any payments for the support of said child was included therein, nor did said judgment contain any provision for alimony.

On February 10, 1955, the court made an order modifying the final decree to require defendant thereafter to pay $75 per month for the support of the child. No appeal was taken from this order. On December 14, 1956, the court found that the sum of $1,650 was accrued and unpaid under the previous order for child support. Defendant filed notice of appeal from this order.

On October 22, 1946, before the entry of the interlocutory decree of divorce herein, the court made an order for temporary alimony. No appeal was taken from this order. On December 31, 1956, the court made an order imposing a lien upon the balance remaining from the judgment recovered by defendant in Washington v. City and County of San Francisco, 123 Cal.App.2d 235, 266 P.2d 828, to secure the balance accrued and unpaid to plaintiff herein under said order for temporary alimony. Defendant appealed from this order.

It was to enable plaintiff to oppose these two appeals that the order herein appealed from was made.

The basic power to allow attorney's fees and costs to enable plaintiff to oppose the two appeals is found in Civil Code, section 137.3 as it read in April 1957 when the order appealed from was made. That section after providing for the award of attorney's fees and costs during the pendency of an action for divorce, continued: 'In respect to services rendered 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 * * *'. Stats.1953, p. 1864. We have no doubt that this language is broad enough to give the court power to allow reasonable attorney's fees and costs in any proceeding taken in the divorce action, after final judgment has been entered, which the court has jurisdiction to entertain.

Plaintiff is legally entitled to the amounts accrued under the order for temporary alimony up to the time when that order was terminated or superseded by further order or the interlocutory decree of the court. Millar v. Millar, 175 Cal. 797, 809-810, 167 P. 394, L.R.A.1918B, 415; Solomon v. Solomon, 118 Cal.App.2d 149, 155, 257 P.2d 760. Under settled principles the divorce court has jurisdiction after final judgment to take the necessary action to enforce the satisfaction of this accrued obligation.

As to the order for payments for the support of the child appellant argues that since the final judgment made no provision for child support and contained no reservation of power to make a future order in that regard ...