When one spouse fails to act in good faith and thereby gains an advantage over the other, he is guilty of fraud. Norris v. Norris, 50 Cal.App.2d 726, 123 P.2d 847, 851-52 (1942); Cal.Civil Code § 2234 (West 1984). Furthermore, when one spouse gains an advantage over the other, the transaction is presumed to be the result of undue influence and without sufficient consideration, thus the advantaged spouse has the burden of proving the transaction was fair, just and reasonable. Morris v. Berman, 159 Cal.App.2d 770, 324 P.2d 601, 613 (1958); Norris, 123 P.2d at 851-52; Cal. Civil Code § 2235 (West 1984).
Robert W. Stephan, Twin Falls, for respondent. In the making of separation agreements between husband and wife a fiduciary relationship exists and the husband must exercise the utmost good faith in the course of negotiations; he must make a full and frank disclosure of all material facts; the provisions for the wife must be fair and reasonable in the light of all the circumstances; and the transaction must be free from fraud, duress, undue influence or over-reaching of any kind. Brownson v. New, 259 S.W.2d 277, (Tex.Civ.App. 1953); In re Poole Estate, 156 Cal.App.2d 768, 320 P.2d 62 (1958); Ryan v. Ryan, 97 U.S.App.D.C. 288, 230 F.2d 838, (D.C. 1956); Cox v. Mailander, 178 S.W. 1012, (Tex.Civ.App. 1915); Story Equity Jurisprudence, Secs. 217, 218; Auclair v. Auclair, 72 Cal.App.2d 791, 165 P.2d 527 (1946); Locke-Paddon v. Locke-Paddon, 194 Cal. 73, 227 P. 715 (1924); Norris v. Norris, 50 Cal.App.2d 726, 123 P.2d 847 (1942); Murray v. Murray, 28 Cal.App. 533, 153 P. 248 (1915); Pegram v. Pegram, 310 Ky. 86, 219 S.W.2d 772 (1949); Walker v. Walker, 41 Nev. 4, 164 P. 653, 169 P. 459 (1917); Simmons v. Briggs, 69 Cal.App. 447, 231 P. 604 (1924). In order to establish a fraud sufficient to void a contract it is necessary that the evidence be clear and convincing but where the persons making the contract stand in a confidential relationship the rule is often relaxed.
In rare instances, however, an order denying fees will be reversed where it is shown that the appeal presents "debatable questions which were not without substantial merit or controversy." ( Norris v. Norris, 50 Cal.App.2d 726, 735 [ 123 P.2d 847].) We believe this to be such a case.
[2] The reviewing courts have uniformly held that there is no compulsion upon the trial court to grant a new trial under section 953e, that the exercise of the power by the court under that section is discretionary, and that an order denying a motion made pursuant thereto should not be reversed except for an abuse of discretion. ( Caminetti v. Edward Brown Sons, 23 Cal.2d 511, 514 [ 144 P.2d 570]; Moore v. Specialty Oil Tool Co., 128 Cal.App. 662, 665 [ 18 P.2d 82]; Conlin v. Coyne, 19 Cal.App.2d 78, 83 [ 64 P.2d 1123]; Norris v. Norris, 50 Cal.App.2d 726, 735 [ 123 P.2d 847]; Kroeker v. Jack, 51 Cal.App.2d 272, 274 [ 124 P.2d 619]; Smith v. Orange Belt SupplyCo., 58 Cal.App.2d 848, 849 [ 137 P.2d 845]; Weisbecker v. Weisbecker, 71 Cal.App.2d 41, 45 [ 161 P.2d 990]; Delafield v. Searle Aero Industries, 76 Cal.App.2d 862, 871 [ 174 P.2d 455]; see, also, Comey v. Comey, 8 Cal.2d 453, 454 [ 66 P.2d 148].) Whether the court has abused its discretion depends on the facts of the particular case.
As the court said in the Kellett case, supra, at pages 49-50: "The matter was so wholly in the discretion of the trial court that in order to set aside its order refusing the application a very strong case must be made out in favor of the plaintiff." While it has been held an abuse of discretion to deny an allowance for costs and attorney's fees where it appears uncontroverted that appellant does not have the necessary funds and that respondent is able to pay ( Norris v. Norris, 50 Cal.App.2d 726 [ 123 P.2d 847]), such a situation is not presented by the record now before us. The court may have taken into account the provision for fees made in the interlocutory decree, and in view of the evidence discussed above with regard to the reduction of alimony we cannot say the trial court erred in refusing to allow costs and attorney's fees.
Thus an appellant's request for new trial may be denied where the record strongly suggests an adequate settled statement could be reached. ( Conlin v. Coyne (1937) 19 Cal.App.2d 78, 81-83 [ 64 P.2d 1123]; Norris v. Norris (1942) 50 Cal.App.2d 726, 734-735 [ 123 P.2d 847].) On the other hand, an appellant is not required to seek a settled statement where the data necessary for settling a statement are unavailable.
(Cf. Norris v. Norris (1942) 50 Cal.App.2d 726, 735 [ 123 P.2d 847].)" ( In re Marriage of Holmgren (1976) 60 Cal.App.3d 869, 873 [ 130 Cal.Rptr. 440].) Civil Code section 4370, subdivision (a), states as follows: "(a) During the pendency of any proceeding under this part, the court may order the husband or wife, or father or mother, as the case may be, to pay such amount as may be reasonably necessary for the cost of maintaining or defending the proceeding and for attorneys' fees; and from time to time and before entry of judgment, the court may augment or modify the original award for costs and attorneys' fees as may be reasonably necessary for the prosecution or defense of the proceeding or any proceeding relating thereto.
(Cf. Norris v. Norris (1942) 50 Cal.App.2d 726, 735 [ 123 P.2d 847].)
[8] Appellant contends, finally, that the order of the trial court denying her attorney's fees on appeal constitutes an abuse of discretion. Clearly the appeal presented "debatable questions which were not without substantial merit or controversy" ( Norris v. Norris, 50 Cal.App.2d 726, 735 [ 123 P.2d 847]; Weil v. Weil, 37 Cal.2d 770, 791 [ 236 P.2d 159]), thus rendering such denial an abuse of discretion. Reasonable attorney's fees should be allowed as the trial court may determine.
"To tell a woman who wishes in good faith to appeal a judgment in a divorce action and who is without funds to pay necessary counsel fees that no such fees will be allowed . . . is practically equivalent to denying her the right to appeal unless her attorney is willing to act without compensation or for the mere possibility that some attorney's fee may be awarded later. In Norris v. Norris, 50 Cal.App.2d 726, 735 [ 123 P.2d 847], where a similar question was being considered, the court dealt with the facts as follows: "`From appellant's affidavit and the evidence in the record it appears to be uncontroverted that appellant did not have the funds necessary to prosecute the appeal or to pay attorneys' fees, that respondent is able to pay a reasonable sum therefor, and that the appeal was taken in good faith and presented debatable questions which were not without substantial merit or controversy.