In Rose v. Rose (1895) 109 Cal. 544, 546 [42 P. 452], it is stated that the trial court, in taking evidence for the purpose of fixing attorney's fees, is not bound by technical rules of evidence, since it is not trying an issue in the case and is merely seeking information upon which to base its order.Summary of this case from Frank v. Frank
Appeal from an order of the Superior Court of Alameda County. W. E. Greene, Judge.
If, upon final determination of the case, the court decided in its discretion that plaintiff was entitled to a further allowance for attorneys' fees, that allowance and the order should have been included in and made a part of the final judgment. (Sharon v. Sharon , 75 Cal. 38; White v. White , 86 Cal. 212, 216 (218); Civ. Code, sec. 137.)
E. M. Gibson, Welles Whitmore, G. S. Langan, and C. C. Hamilton, for Appellant.
Dodge & Fry, for Respondent.
The order allowing plaintiff additional attorney's fee was not erroneous, as it was necessary to enable her to prosecute her action. (Sharon v. Sharon , 75 Cal. 42; Civ. Code, sec. 137; White v. White , 86 Cal. 214; Loveren v. Loveren , 100 Cal. 493.)
JUDGES: Harrison, J. Garoutte, J., and Van Fleet, J., concurred.
The plaintiff brought this action against the defendant for a divorce, and soon after the commencement of the action the court, upon her application, made an order requiring the defendant to pay to her a certain sum of money as alimony, and two hundred and fifty dollars counsel fees. After the cause had been at issue, and the trial had proceeded for some time, the plaintiff made application for an additional sum of money for counsel fees, and the court made an order requiring the defendant to pay, on or before the first day of October, 1894, "as and for her attorney's fees, rendered in this case, and for attorney's services to be rendered from this time up to the conclusion of the present trial of this action," the sum of seven hundred dollars. From this order the defendant has appealed, presenting the action of the court below in a bill of exceptions.
Section 137 of the Civil Code provides: "While an action for divorce is pending the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action."
The amount which is to be thus allowed is necessarily left to the discretion of the trial court, inasmuch as the circumstances of no two cases are alike. 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. (Bohnert v. Bohnert , 91 Cal. 428.) Unless it is made to appear that the court has been guilty of an abuse of its discretion, its order in this respect cannot be disturbed upon appeal therefrom. It was stipulated between the parties at the hearing of this application that the plaintiff had no means of her own, and it does not appear from the record that the defendant is unable to pay the amount directed. As the value of the services and the pecuniary condition of the defendant are [42 P. 453] elements entering into the determination by the court of the amount which it will direct to be paid, the court would naturally require some evidence upon these points, and, unless it is made to appear that the order was made without any evidence, or without any opportunity on the part of the husband to be heard, and that it is of such a character as on its face to be inordinate in amount, it must be assumed that the discretion of the court has been properly exercised. The mere absence from the record of the evidence upon which the order was based does not authorize its reversal. The appellant must show that error has been committed. 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.
The court was not precluded from making the order by reason of the averment in the complaint that three hundred and fifty dollars was a reasonable amount to be allowed as counsel fees for the prosecution of the suit. The value of these services was no part of the plaintiff's cause of action, and need not have been named in her complaint. They were at most only the opinion held by her at the time the action was commenced, and which was subject to be changed by the development of subsequent circumstances. (See Pacific Mut. Life Ins. Co. v. Fisher , 106 Cal. 234.)
The order is affirmed.