Appeals by defendant and cross-complainant from a judgment of divorce and from an order denying her application for attorney’s fees and costs on appeal.
The parties involved in this divorce case carried on a mеretricious relationship for 10 months in 1948 while the respondent was awaiting a final decree of divorce from his first wife. That decree having been entered they were married on January 16, 1949. Marital strife quickly developed and they separated on April 25, 1949. Respondent filed suit for annulment or divorce on May 23, 1949. Thereafter appellant filed an answer and cross-complaint. The cause was on trial for three days in March, 1950, following which the court awarded a divorce and the property involved to respondent. It gave no relief to appellant except that it directed respondent to pay to appellant and her attorney $50 court costs and $300 attorney’s fees. Following the entry of judgment the appellant sought an order compelling respondent to pay her attorney’s fees and costs on appeal. After a hearing on the order to show cause the trial court denied her any relief.
Appellant attacks the judgment on the ground that the findings and judgment are not supported by the evidence. Each of the findings is supported by substantial evidence. The judgment is supported by the findings. Under the long established rules of law we cannot substitute our judgment for that of the trial court. Appellant also urges that the court made erroneous rulings in the sustaining of respondent’s objections to some of appellant’s questions. We find no merit in any of appellant’s contentions.
The record contains ample evidence to support the court’s finding that during the marriage the appellant had treated respondent with extreme cruelty and had wrongfully inflicted upon him grievous mental suffering. Such evidence consisted in part of respondent’s testimony, which was sufficiently corroborated, that commencing a few weeks after the marriage appellant on several occasions insisted that he transfer his separate property to her name and threatened to leave him at once unless he did so; that she was frequently mentally disturbed; that she accused him of having lost his manhood and of being impotent; that she repeated such accusations to members of his family; that shortly before the separation she said; “Let us get rid of this farce of a marriage and get a divorce”; and that respоndent suffered greatly by reason thereof. The court was fully justified in drawing the infer *348 ence that if the appellant loved the respondent at the time of the marriage she lost that love shortly afterwards and that that fact became evident to respondent. • In her briefs the appellant insisted that the court should not have believed the respondent. However, that was within the sole discretion of the trial court. We cannot say from the record that the court was not justified in believing the respondеnt’s testimony to be true.
Appellant also contends that the court should have awarded her at least some of the property involved and that the failure of the court to do so was so unfair and unjust as to result in a miscarriage of justice. At the timе of the marriage the appellant had no property assets, except a small amount of furniture, while the respondent had substantial equities in the residence in which the parties thereafter lived and in the furniture with which it was equipped and in an аutomobile. The respondent was required to make substantial monthly payments to protect these equities. During the marriage the respondent received approximately $400 per month and the appellant received approximately $230 per month as their respective salaries from separate employments. During the marriage the respondent received $2,500 in cash from a property settlement theretofore made with his former wife and borrowed approximаtely $450 on his life insurance policy. During the same period of time he made various payments upon the residence property, the furniture and on his automobile. The court found that all of such payments, made prior to May 1, 1950, were made out of his separate property. It also found “It is true that there is no other community interest other than the $2,496.54 spent by plaintiff on his separate property.” It also found as a conclusion of law “That any and all community interests, if any, by reason of pаyments on obligations on plaintiff’s separate property made after marriage is awarded to plaintiff.” The apparent uncertainty of the court in regard to the existence of community property, appears to have been due to the following evidence: That the appellant’s mother and her two children by her previous marriage lived with the parties; that the salaries of the parties were used for the payment of the living expenses of the entire family, without аny record being kept of the amounts so spent; that according to an itemized statement of account the respondent spent approximately $2,300 more than he received from his earnings from the date of marriage to the time of triаl.
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Under the facts presented we cannot say that the court was not justified in awarding to the respondent whatever community interest in the property in question existed. The respondent, being the nonoffending party, was entitled to something in excess of one half of such community interest (see Civ. Code, § 146, subsection one;
Harrold
v.
Harrold,
We have examined the portions of the reporter’s transcript cited by the appellant in support of her contention that the court erred in certain rulings upon the admissibility of evidence. Appellant’s principal complaint in this regard is that the court unduly restricted the cross-examination of the respondent. From our examination of the portions cited, as well as other portions of the reporter’s transcript, it does not appear that the court was unduly restrictive of counsel for the appellant while cross-examining or that it was more liberal with counsel for the respondent in that regard. Furthermore, there is no showing in the record as to what, if any, material facts would have been developed on behalf оf appellant if her counsel had been permitted greater latitude on cross-examination.
From the matters presented in the briefs and from the record as examined by us we cannot say that the manner in which the trial was conducted was unfair оr unjust to the appellant or that a miscarriage of justice resulted therefrom.
In arriving at its decision denying attorney’s fees and costs on appeal, it was necessary for the trial court to consider the needs of the wife, the ability to pay of the husband and the good faith of the wife. It was proper for the court to take into account not only the evidence produced at the hearing on the order to show cause, including the affidavits, but also the history of the entire litigation, аnd the circumstances that brought the unfavorable result to the wife, including the evidence introduced at the trial
*350
(see
Wittman
v.
Superior Court,
In determining the question of appellant’s good faith in seeking the allowances in question and in prosecuting the appeal the court had nоthing of an evidentiary nature to consider except the record. The appellant was not questioned on this subject nor did she refer to it in her affidavit. Her counsel neither testified nor filed any affidavit in regard thereto. During the course of his argument he' did assert, in strong terms, that he would be successful in securing a reversal of the judgment. In view of the absence of any expression by her the court was justified in concluding that
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the existence of appellant’s good faith depended to a great extent upon whether there was a reasonable basis for this assertion by counsel. Apparently the court did not think so. “Where the trial court is satisfied, from the record before it, that the proposed appeal is not undertaken in good faith, or with rеasonable belief that it has merit [citing a case], the application should be denied.”
(Stewart
v.
Stewart,
It is a firmly settled principle of law that the granting of attorney’s fees and cоsts on appeal rests in the sound discretion of the trial court and will not be disturbed by the reviewing court unless abuse of that discretion is shown (see
Kellett
v.
Kellett,
In view of аll the facts and circumstances before the trial court we cannot say that the trial court abused its discretion in denying to appellant the allowance of attorney’s fees and costs.
The judgment and order are affirmed.
Shinn, P. J., and Wood (Parker), J., concurred.
A petition for a rehearing was denied March 11, 1952, and appellant’s petition for a hearing by the Supreme Court was denied April 17, 1952.