Is a motion for attorney fees allowed in a divorce proceeding which "grow[ out of" the divorce proceeding?

This principle, that attorney fees are to be allowed in those proceedings which "grow[ ] out of" the divorce proceeding, stems from the decision in Lerner v. Superior

Page 705

Where the action does not grow out of the divorce, fees under section 137.3 are properly denied. Thus, in Hendrix v. Hendrix (1955) 130 Cal.App.2d 379, 279 P.2d 58, the court rejected a broader interpretation of the attorney fees provision. In Hendrix, the parties had been divorced in Washington State; and there was no California dissolution proceeding. When a later dispute was pursued in the California courts concerning the wife's alleged kidnapping of some of the children, the trial court denied a motion for attorney fees in such an action: "It is not one of the actions specified in sections 137.3 and 137.5 of the Civil Code in which attorney's fees are allowed. Since there is no statutory provision for the allowance of attorney's fees in the present action, the mode of compensation is left to the agreement, express or implied, of the parties." (Id. at p. 383, 279 P.2d 58.)