227 P. 713 | Cal. Ct. App. | 1924
This is an appeal from an order of the superior court of the county of Santa Clara, state of California, directing the plaintiff to pay to the defendant the sum of $60 a month for her support pending the trial of a divorce action, and the further sum of $10 for costs and $250 for counsel fees in said action in which defendant had filed a cross-complaint.
In the trial court the plaintiff opposed the granting of the motion for alimony pendente lite, costs and attorney's fees upon the ground that the parties had entered into a contract for the settlement of their property rights, under which the defendant had received the sum of $1,000 and had relinquished all other claims against the property of the plaintiff and the property of the community. The *196 agreement between the parties with reference to their property rights was offered in evidence at the hearing upon the motion as were also the pleadings in the divorce action in which the defendant and cross-complainant attacked such agreement as fraudulent and void.
Appellant contends that it is apparent upon its face that said agreement is not objectionable in any way under the decisions dealing with agreements of this character which have been held to be contra bonos mores, and that unless a hearing was had upon the issue that the same had been obtained by undue influence or fraud and a finding made thereon, it stands as a binding agreement between the parties and precludes the trial court from making any allowance for alimony and costs, contrary to its provisions.
[1] We are thus confronted with the question: Does a contract between husband and wife settling out of court their property rights, in accordance with the provisions of section 159 of the Civil Code, which contract does not show upon its face that it is contra bonos mores, and which contract has not been adjudicated null and void because obtained by fraud, undue influence or for any other reason, deprive the trial court of its power to grant alimony pendente lite under the provisions of section 137, Civil Code? We think the case of McCahan v.McCahan,
It is true that in the above-cited case the opinion states that the portion of the contract of separation which governed *197
the amount to be paid for counsel fees in the event of a divorce was void as contra bonos mores, and therefore, of no force and effect; but it expressly said that for another reason the trial court might have disregarded the provisions of said contract relating to counsel fees and costs. The other reason was: "Our statute provides that during the pendency of a divorce action the court may, in its discretion, compel the husband to pay the wife any money necessary to prosecute or defend the cause. (Civ. Code, sec. 137) . . . The courts of this state have consistently recognized and upheld the broad discretionary power vested in the trial judges, by the above section of the code, in these matters. In refusing to sanction an agreement between an attorney and a plaintiff in a divorce action for a contingent fee, the Supreme Court pointed out that in such cases 'the law has taken care that the wife shall not be without assistance in proper cases either to prosecute or defend such actions. . . . The reason or necessity therefor does not exist in such cases as in the others for allowing contingent attorney's fees, and where the reason ceases the rule or law also ceases.' (Newman v. Freitas, supra.) In yet another case the same court was called upon to construe a contract similar, in effect, to the provision in the agreement we are here considering. It was there said: 'nor in the case of suit could the agreement control the action of the court in the exercise of its discretion in allowing alimony or attorney's fees.' (In re Estate of Sloan,
"Appellant relies upon the case of Lee v. Lee,
It would seem that the decision from which the foregoing extract is taken rests upon the broad ground that the matter of costs and counsel fees in divorce actions has been exclusively vested in the discretion of the trial court by legislative enactment and that any agreement made by the parties attempting to settle such matters is subject to the examination and sanction of the court. This was recognized in the later decision of Whiting v. Whiting,
In the case of Millar v. Millar,
The answer to appellant's position that he has a right to stand upon his contract with the respondent until the same is set aside in a proper proceeding, is that under the decisions hereinbefore cited, all such contracts must be made subject to the discretion of the trial court vested in it by section 137 of the Civil Code.
The order appealed from is affirmed.
Sturtevant, J., and Nourse, J., concurred.
A petition by appellant to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on July 7, 1924.
All the Justices concurred. *199