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a divorce to her husband, she filed an affidavit stating that the appeal was taken in good faith and on the advice of counsel that she had good grounds for appeal, and also filed notice of intention to move for a new trial, and served a bill of exceptions for use on this motion, there was a sufficient showing that the appeal was in good faith and meritorious to justify the trial court in granting the wife alimony pending the appeal.-Gay v. Gay, 146 Cal. 237, 79 Pac. 885.

[i] On an application of a wife for alimony and suit money in divorce, it was within the court's discretion to permit her attorney to file an affidavit at the hearing.-Youree v. Youree, 1 Cal. App. 152, 81 Pac. 1023.

[j] On an application for alimony, suit money, etc., in an action against a wife for divorce, refusal to permit plaintiff to file an affidavit at the hearing, in reply to an affidavit then filed by defendant, held not an abuse of discretion.-Youree v. Youree, 1 Cal. App. 152, 81 Pac. 1023.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 756; 17 Cent. Dig., cols. 811818, §§ 626-631.

§ 96. Amount.

[a] Allowance of seven thousand five hundred dollars as temporary alimony held excessive and an abuse of discretion.-Sharon v. Sharon, 75 Cal. 48, 49, 16 Pac. 345.

[b] Measure of temporary alimony is that which is necessary to provide for reasonable support according to wife's station in life.Sharon v. Sharon, 75 Cal. 47, 48, 16 Pac. 345.

[c] Temporary alimony should, ordinarily, be less than permanent alimony.-Sharon v. Sharon, 75 Cal. 46, 16 Pac. 345.

[d] Actual conditions should be considered in fixing amount of temporary allowance.Sharon v. Sharon, 75 Cal. 46, 16 Pac. 345.

[e] Plaintiff and defendant had been secretly married, and the wife agreed to keep the marriage secret. The husband agreed to allow the wife a certain amount of money per month until the marriage was acknowledged. Held, in an action for divorce, on application for temporary alimony, that it was an abuse of discretion to allow the wife more than the husband had agreed to allow her until the marriage was acknowledged.— Sharon v. Sharon, 75 Cal. 1, 16 Pac. 345.

[f] An order was made in a divorce suit requiring the husband to pay to his wife (defendant) alimony pendente lite, one hundred and twenty-five dollars per month, and two hundred dollars counsel fees. There was one son, aged twelve years, who lived with his mother. Defendant's father had conveyed to her a house and lot worth at present thirty thousand dollars, and yielding a rental of one hundred and thirty-five dollars per month. Two weeks after the suit was commenced, she conveyed it back to her father, without consideration, by deed, which was not

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corded. The rents thereof were still paid to her. Plaintiff's net earnings were two hundred and seventy-five dollars per month; his personal expenses, one hundred and fifty dollars per month. He owed six hundred dollars, which he was paying in installments. Held, that the monthly allowance should be reduced to fifty dollars per month, to include the support and education of the son.-Meyer v. Meyer, 120 Cal. 225, 52 Pac. 486.

[g] Where, in divorce, defendant has no property, save some personalty, of the value of about four hundred and seventy dollars, and which, according to his testimony, could not be sold on forced sale for over three hundred dollars, an order for three hundred dollars alimony and counsel fees is excessive.Baker v. Baker, 136 Cal. 302, 68 Pac. 971.

FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 756; 17 Cent. Dig., cols. 818823, §§ 632-634.

§ 97. Order.

On

[a] On suit by a wife for divorce she was granted two hundred and firty dollars per month as alimony pendente lite, and on judgment granting the husband a divorce on his cross-complaint this order was revoked. application by the wife for alimony pending appeal, the court granted her one hundred dollars per month, the order also reciting that, as she had received no alimony for three months, the payments should date from three months before the order and the husband immediately pay her three hundred dollars. Held, that it was a reasonable inference from the order that the allowance of three hundred dollars was made in order to enable the wife to further carry on her case.-Gay v. Gay, 146 Cal. 237, 79 Pac. 885.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 759, 760; 17 Cent. Dig., cols. 823, 824, §§ 635, 636.

§ 98. Termination.

[a] Though an absolute divorce obtained by a husband would relieve him from a prior judgment for maintenance obtained against him by his wife, a judgment awarding the divorce, when set aside by the trial court, cannot have that effect, even though the order setting it aside has been appealed from. Smith v. Superior Court in and for City and County of San Francisco, 136 Cal. 17, 68 Pac. 100.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 760; 17 Cent. Dig., col. 826, § 640.

C. ALLOWANCE FOR COUNSEL FEES AND EXPENSES.

STATUTE CONSTRUED, § 99.

CONDITION OF CAUSE, § 100.

AFTER TRIAL AND JUDGMENT, § 101. NUMBER OF COUNSEL ALLOWED, § 102.

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[a] Civil Code, section 137, provides that during the pendency of the action the court may require the husband to pay any money to enable the wife to prosecute her action for divorce, Code of Civil Procedure, section 1049, provides that an action is deemed pending until time for appeal has passed. Held, that these sections are applicable to a proceeding to vacate a judgment in a divorce case under Code of Civil Procedure, section 473, granting the trial court power to relieve a party from judgment where application is made within six months from entry.-Grannis v. Saperior Court of City and County of San Francisco, 143 Cal. 630, 77 Pac. 647.

§ 100. Condition of Cause.

[a] If, pending an action for divorce, the parties thereto admit a condonation, and ask that the action be dismissed, the court should order a dismissal, and thereafter the husband cannot be compelled to pay the counsel fees of the wife.-Reynolds v. Reynolds, 67 Cal. 176, 7 Pac. 480.

[b] The court had jurisdiction, in a divorce case, to order defendant to pay plaintiff twenty-five dollars per month alimony, though issue of fact had not been joined, and there was pending a demurrer to the complaint.— Langan v. Langan, 91 Cal. 654, 27 Pac. 1092.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 761; 17 Cent. Dig., cols. 829831, § 644.

§ 101.

After Trial and Judgment. [a] Under section 137 of the Civil Code the power of the trial court to make an allowance to the wife for her support as alimony, or for the purpose of defending or prosecuting an action for divorce, is not exhausted upon the rendition of the judgment, but may be exercised at any time during the pendency of an appeal.-Bohnert v. Bohnert, 91 Cal. 428, 27, Pac. 732.

[b] Under Civil Code, section 137, providing that the court may, while an action for divorce is pending, require the husband to pay, as alimony, money necessary to enable the wife to prosecute or defend the action, an allowance of counsel fees incurred during the trial cannot be made on final judgment.-Lacey v. Lacey, 108 Cal. 45, 40 Pac.

1056.

[c] The power of the court to compel the husband to pay the wife's counsel fees for

services of her attorney in an action for divorce, where she is without means to pay them, is not exhausted by the granting of a final judgment.-Grannis v. Superior Court of City and County of San Francisco, 143 Cal. 630, 77 Pac. 647.

§ 102. Number of Counsel Allowed.

[a] Wife cannot, as of course, employ as many attorneys as she chooses and compel husband to furnish funds for whatever she is to pay them.-Sharon v. Sharon, 75 Cal. 39, 16 Pac. 345.

[b] It seems that where husband employs three attorneys to prosecute his case wife may employ equal number.-White v. White, 86 Cal. 215, 24 Pac. 996.

§ 103. Discretion of Court.

[a] Court has discretionary power to allow wife counsel fees pending appeal by husband from order directing him to pay her counsel fees, pending suit for support and maintenance.-Winter, Ex parte, 70 Cal. 293, 11 Pac. 630.

[b] Allowance of alimony and costs is discretionary. Schammel v. Schammel, 73 Cal. 105, 106, 14 Pac. 393.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 762; 17 Cent. Dig., cols. 831832, § 645.

§ 104. Time to Fix.

[a] 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 a new allowance from time to time, as the exigencies of the case shall seem to demand.-Rose v. Rose, 109 Cal. 544, 42 Pac. 452.

§ 105. Grounds.

[a] In an action for divorce, brought by a wife, where the marriage is denied, to entitle her to alimony and suit money she must prove it by a preponderance of the evidence; a mere prima facie showing is not sufficient. Judgment and order (1898) 55 Pac. 900, reversed.-Hite v. Hite, 124 Cal. 389, 71 Am. St. Rep. 82, 57 Pac. 227.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 762; 17 Cent. Dig., cols. 832834, § 646.

§ 106. Defenses and Objections.

[a] Where attorneys are prosecuting wife's cause on contingent fee basis, she is entitled to no allowance as counsel fees.-Sharon v. Sharon, 75 Cal. 42, 16 Pac. 345.

[b] It is proper to refuse alimony pendente lite to pay fees of attorney who has agreed to give his services for contingent fee.White v. White, 86 Cal. 213, 215, 24 Pac. 1030.

[c] Fact that one of wife's attorneys gives his services for contingent fee does not preclude allowance to pay for services of others. White v. White, 86 Cal. 214, 217, 24 Pac. 1030. [d] Under Civil Code, section 137, wife is not entitled to an order requiring her husband to pay her a sum of money for counsel fees, where counsel have agreed to render her their services gratuitously.-Mudd Mudd, 98 Cal. 320, 33 Pac. 114.

[c] Under Civil Code, section 137, providing that the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to prosecute or defend the action, it is not within the discretion of the court to allow the wife money for unnecessary counsel in the action. Sharon v. Sharon, 75 Cal. 1, 16 Pac. 345.

[d] It appearing that two thousand four hundred dollars had already been allowed for attorney's fees, and that this sum was more than had been paid by the husband to his attorneys, and more than half the amount that they were V. to receive in the suit, it was not an abuse of discretion to refuse a further allowance for that purpose to the wife.-White v. White, 86 Cal. 212, 24 Pac. 1030.

[e] Where application of divorced wife to modify decree is without merit, her application for counsel fees is properly denied.Parkhurst v. Parkhurst, 118 Cal. 22, 50 Pac. 9.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 762; 17 Cent. Dig., cols. 834836, §§ 647-650.

§ 107. Application and Proceedings Thereon. [a] On an application by a wife for an allowance for attorney's fees under Civil Code, section 137; authorizing the court to require the husband to pay as alimony any money necessary to enable the wife to prosecute or defend the action, no proof is necessary to assist the court in fixing the amount of the fees, as the court may determine, in its own discretion, from the facts and circumstances of the case as they appear to it, from the pleadings, and from the papers, what is reasonable fee.-Peyre v. Peyre, 79 Cal. 336, 21 Pac. 838.

[b] Where, in divorce, defendant is not served with process, and has no notice of an application for alimony and counsel fees, an ex parte order for the same is unauthorized and void.-Baker v. Baker, 130 Cal. 302, 68 Pac. 971.

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[e] Wife is entitled to such allowance out of community estate as is necessary to employ sufficient counsel to maintain her rights.White v. White, 86 Cal. 214, 24 Pac. 996.

[f] Where the expenses of a divorce action have been incurred and paid by the wife with money borrowed by her entirely upon the strength of her own credit they cannot be made the basis of an order granting an ailowance therefor, and compelling the husband to pay them.-Loveren v. Loveren, 100 Cal. 493, 35 Pac. 87.

[g] An allegation, in a complaint for divorce by a wife, that a certain sum was a reasonable allowance for counsel fees, does not prevent the court from ordering the payment of a greater sum.-Rose v. Rose, 109 Cal. 544, 42 Pac. 452.

[h] An order by the judge who tried a divorce case, granting one hundred dollars printer's fees and two hundred and fifty dollars counsel fee, on a pending appeal from a judgment in favor of the wife, and contemplated appeal from an order denying a new trial, will not be reversed as excessive. Wolff v. Wolff, 37 Pac. 858.

FOR AUTHORITIES FROM OTHER STATES:

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[a] Money necessary to prosecute or defend suit should be ordered paid to wife; court cannot order husband to pay it to her attorneys. Sharon v. Sharon, 75 Cal. 38, 39, 16 Pac. 345.

[b] An order to pay plaintiff alimony was not erroneous because the requirement to pay the amount fixed by it was not expressly limited to such time as the action should be pending.-Langan v. Langan, 91 Cal. 654, 27 Pac. 1092.

[c] An order awarding counsel fees "to the plaintiff or to her counsel" in a suit for divorce, while inaccurate in directing payment to be made to plaintiff's counsel, is not sufficiently irregular to justify a reversal.

Kowalsky v. Kowalsky, 145 Cal. 394, 78 Pac. 877.

[d] In a divorce action, the trial judge could vacate an order for the payment of attorney's fees made ex parte upon the wife's misrepresentation that she had no separate estate.-Glass v. Glass (Cal. App.), 88 Pac.

733.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 766; 17 Cent. Dig., cols. 841842, § 655.

§ 110. Fees and Expenses of Appeal or Motion for New Trial.

[a] The superior court has power in an action of divorce, after an appeal has been taken by the wife from a judgment rendered against her, to compel the husband to pay her a reasonable sum of money for costs and counsel fees with which to prosecute the appeal.-Larkin v. Larkin, 71 Cal. 330, 12 Pac.

227.

[b] Under Code of Civil Procedure, section 1049, an action is pending from its commencement until final determination on appeal, or until the time for appeal has passed; and under Civil Code, section 137, providing that "when 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 court, in an action by the husband for divorce, may, after judgment for him, on the wife's showing that she wishes in good faith to appeal, and has no means, order the husband to pay for transcribing the testimony, and other costs, and to pay into court for the wife's attorney a certain sum for prosecuting appeal; such order being an allowance for the wife, and not a direct judg ment in favor of persons not parties to the suit.-Bohnert v. Bohnert, 91 Cal. 428, 27 Pac. 732.

[c] Court may order husband in whose favor decree is entered to pay wife such money as it might deem necessary to enable her to prosecute motion for new trial or to appeal. Storke v. Storke, 116 Cal. 51, 47 Pac. 869.

D. PERMANENT ALIMONY.

IN GENERAL, § 111.

DISCRETION OF COURT, § 112.

RIGHT OF WIFE ON REFUSAL OF DIVORCE, § 113.

AFTER FINAL JUDGMENT, $ 1132.
DEFENSES AND OBJECTIONS, § 114.
AMOUNT, § 115.

AWARD OF GROSS SUM, § 116.

LIEN OF CLAIM OR JUDGMENT, § 117.
NEW TRIAL, § 118.

JUDGMENT OR DECREE, § 119.
MODIFICATION OF JUDGMENT, $ 120.
VACATION OR SETTING ASIDE, § 121.
ASSIGNMENT OF ALIMONY, § 1212.

§ 111. In General.

[a] Decree for permanent alimony may provide for payment of allowance from appear

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§ 113. Right of Wife on Refusal of Divorce. [a] Alimony cannot be awarded to wife upon granting to husband a divorce for her fault-as here, for her cruelty to him.Everett v. Everett, 52 Cal. 383..

[b] Under section 136, Civil Code, court may refuse wife divorce and grant her maintenance. Hagle v. Hagle, 68 Cal. 590, 9 Pac. 842.

[c] Under Civil Code, section 136, providing that, "though judgment of divorce is denied, the court may, in an action for divorce, provide for the maintenance of the wife and her children, or any of them, by the husband," alimony cannot be granted to the wife living apart as in a judicial separation, where there is no statutory ground for an absolute divorce.-(1888) Hagle v. Hagle, 74 Cal. 608, 16 Pac. 518; (1880) Reade v. Reade, 22 Pac. 284.

[d] Civil Code, section 136, providing that in an action for divorce, if relief be denied the plaintiff, the court may direct that the husband maintain the wife or children, does not authorize an allowance of permanent alimony in such a case upon the mere allegation by defendant of her husband's cruelty without proof.-Peyre v. Peyre, 79 Cal. 336, 21 Pac. 838.

[e] Under our code allowance for future support of wife is compensation for wrong done her and is allowed only when divorce is granted for offense of husband.-Spencer, Ex parte, 83 Cal. 464, 17 Am. St. Rep. 266, 23 Pac. 395.

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it cannot require the husband to pay to the wife, after the divorce, out of his separate property, a sum or sums of money for her support.-Everett v. Everett, 52 Cal. 383.

[b] Where a wife had, in a suit for maintenance, obtained a decree for monthly payments, the granting of alimony to the wife in a subsequent suit for divorce by the husband held error.-Smith v. Smith, 147 Cal. 143, 81 Pac. 411.

FOR AUTHORITIES FROM OTHER STATES:

See 17 Cent. Dig., cols. 856-859, §§ 670672.

§ 115. Amount.

[a] Court, in granting a divorce, may direct the defendant to pay the plaintiff a monthly sum as alimony, and the allowance may be based on his earnings or upon his ability to earn money.-Eidenmuller v. Eidenmuller, 37 Cal. 364,

[b] Alimony of one hundred and twentyfive dollars per month to bedridden wife is not excessive where husband's income is four hundred and thirty-two dollars.-Schammel v. Schammel, 74 Cal. 37, 38, 15 Pac. 354.

[c] In fixing amount of future allowance, court may regard earnings of husband or his ability to earn, and may subsequently reduce or increase amount as circumstances warrant. Spencer, Ex parte, 83 Cal. 465, 17 Am. St. Rep. 266, 23 Pac. 395.

FOR AUTHORITIES FROM OTHER STATES:

See 14 Cyc. 772-779; 17 Ceut. Dig., cols. 861-868, §§ 675-678.

§ 116. Award of Gross Sum.

[a] Under Civil Code, section 139, providing that, when a divorce is granted for an offense of the husband, "the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during life, or for a shorter period, as the court may deem just," etc., alimony may be decreed in gross-Robinson v. Robinson, 79 Cal. 511, 21 Pac. 1095.

[b] Where defendant's property is worth five thousand dollars, there is no abuse of discretion in decreeing plaintiff alimony in the sum of fifteen hundred dollars for the support of herself and two small children.Robinson v. Robinson, 79 Cal. 511, 21 Pac. 1095.

[c] Where the wife had declared a homestead upon the separate property of the husband, the court may set it apart to her for a limited period upon granting a divorce in her favor; but it is not compelled to do so, and may, in lieu thereof, adjudge a specific sum for permanent alimony, and charge it as a lien upon the premises.-Huellmantel v. Huellmantel, 124 Cal. 583, 57 Pac. 582.

FOR AUTHORITIES FROM OTHER STATES: See 14 Cyc. 777-779; 17 Cent. Dig., cols. 868-875, §§ 679, 680.

§ 117. Lien of Claim or Judgment.

[a] A court has the power to make its judg ment for the payment of alimony to a wife a lien on property of the husband, the provision of Civil Code, section 140, authorizing it to require a husband to give security for the payment of alimony, or to appoint a receiver, not being an abridgment of its general equity powers.-Gaston v. Gaston, 114 Cal. 542, 55 Am. St. Rep. 86, 46 Pac. 609.

[b] Under sections 139 and 140 of the Civil Code the court may make the wife's alimony a lien upon the husband's estate, and may enforce the lien by appointing a receiver to collect the rents and profits, and to proceed to sell the property and pay the several sums adjudged to be due to the plaintiff.-Huellmantel v. Huellmantel, 124 Cal. 583, 57 Pac. 582.

§ 118. New Trial.

[a] Allowance of alimony is an incident to an action for divorce, and the determination as to its allowance is not the trial of an issue in the case; and hence a new trial will not be granted for a re-examination of an allowance of alimony, a new trial being a reexamination of an issue of fact in the same court after a trial.-Hunter v. Hunter, 111 Cal. 261, 43 Pac. 756.

§ 119. Judgment or Decree.

[a] Under Civil Code, section 4, requiring the code to be liberally construed, with a view to promote justice, a permanent future allowance to a divorced wife will not be defeated because granted under the misnomer of " 'permanent alimony," where it is a lawful grant under Civil Code, section 139, which provides that where a divorce is granted for an offense of the husband the court may make a suitable allowance to the wife for her support for life, or for a shorter period.-Spencer, Ex parte, 83 Cal. 460, 17 Am. St. Rep. 266, 23 Pac. 395.

[b] Where, on rendering a decree of divorce, the question of alimony is reserved, a subsequent order awarding alimony is not void.O'Brien, Ex parte (Cal.), 48 Pac. 71.

[c] Under Code of Civil Procedure, section 580, the part of a default judgment for div orce which allows alimony held not void on the ground that the relief is in excess of that prayed for.-Cohen v. Cohen (Cal. Sup.),

88 Pac. 267.

[d] A decree awarding alimony to a wife obtaining a divorce held prima facie based on the obligation of the husband to give her support, and not on any property rights pos sessed by her at the time of the divorce.Cohen v. Cohen (Cal. Sup.), 88 Pac. 267.

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