In Re Marriage of Newport

Jana Newport challenges an order denying her attorneys’ fees and costs for two order to show cause hearings and an earlier appeal arising from the dissolution of her marriage. She contends the trial court erroneously determined it lacked jurisdiction to award her fees and costs and, alternatively, the court’s failure to exercise jurisdiction violated her constitutional rights to due process and equal protection.

Jana and James were married in 1970 and separated in 1979. The final judgment, as to status only, was entered October 30, 1980. Both parties have since remarried. Their minor child resides with Jana.

Following bifurcated trials on the issues of child custody and division of property, the court entered judgments on August 25 and November 30, 1981. The issue of attorneys’ fees was specifically reserved. Both parties filed notices of appeal in November and December 1981.

On January 7, 1982, Jana filed an order to show cause (OSC) for attorneys’ fees and costs for her first appeal. A hearing on the matter was continued to May 1982. In a second OSC she requested partial payment before April 7, 1982, to prevent her default for failure to deposit costs for her…

I concur but with a few observations:

First, McClure v. McClure (1935) 4 Cal.2d 356 [ 49 P.2d 584 , 100 A.L.R. 1257 ] stood only for the point that attorneys fees were not recoverable by a wife seeking to reinstate alimony long after it had terminated. (In re Marriage of Coleman (1972) 26 Cal.App.3d 56 [ 102 Cal.Rptr. 629 ]; Cochran v. Cochran (1970) 13 Cal.App.3d 339, 351 [ 91 Cal.Rptr. 630 ].) That holding may have been undermined by the expansion of the statutory basis for awards of fees of section 4370 of the Civil Code; but we have no need to discuss the question in this appeal, since spousal support is not even an issue here.

Second, if the majority really intends to pronounce McClure , a Supreme Court holding, moribund and to “discredit” the theory that attorneys fees and costs continue to have any relationship to spousal support after the Family Law Act, it may surprise many in the bench and bar; for most recognized authorities disagree. (See, e.g., Adams & Sevitch, Cal. Family Law Act Practice (4th ed. 1983) § A.29, p. A-9: “Since an award of attorneys’ fees is considered a personal award to the recipient and is founded on the same principle as an award of spousal…

Jana Newport challenges an order denying her attorneys' fees and costs for two order to show cause hearings and an earlier appeal arising from the dissolution of her marriage. She contends the trial court erroneously determined it lacked jurisdiction to award her fees and costs and, alternatively, the court's failure to exercise jurisdiction violated her constitutional rights to due process and equal protection.

Jana and James were married in 1970 and separated in 1979. The final judgment, as to status only, was entered October 30, 1980. Both parties have since remarried. Their minor child resides with Jana.

Following bifurcated trials on the issues of child custody and division of property, the court entered judgments on August 25 and November 30, 1981. The issue of attorneys' fees was specifically reserved. Both parties filed notices of appeal in November and December 1981. [1]

On January 7, 1982, Jana filed an order to show cause (OSC) for attorneys' fees and costs for her first appeal. A hearing on the matter was continued to May 1982. In a second OSC she requested partial payment before April 7, 1982, to prevent her default for failure to deposit…