Opinion
Martin J. Weil, Los Angeles, for appellant.
Martineau & Martineau and Glenn B. Martineau, Los Angeles, for respondent.
LILLIE, Justice.
Plaintiff wife appeals from an order reducing monthly alimony payments from $425 to $300 under an interlocutory judgment of divorce awarded to her following a trial on the merits. She contends that there has been no showing of 'changed conditions' as impliedly found below.
The parties were married in 1940 and separated in 1956. Two daughters were the issue of the marriage. At the time of the trial (1958) they were 16 and 14 respectively; defendant was ordered to pay plaintiff for their support the sum of $100 per month per child. The interlocutory judgment also divided the parties' community property. Plaintiff was given the San Marino residence (subject to an encumbrance) with most of its furnishings and furniture, and a 1953 Pontiac automobile; defendant was awarded the parties' house in Newport Beach, California, and a 1955 Lincoln.
In February of 1960, at which time the older daughter (Mary Ann) was enrolled in college, the parties stipulated in writing that the $100 per month support payment be made directly to said child during the months she was attending college; it was further stipulated that defendant 'shall * * * pay such additional expenses as may be required for the support of said child while she is away at college.' Pursuant to the same stipulation, defendant also obligated himself to pay for dental attention needed by Mary Ann, 'the cost of two (2) small bridges in her upper jaw.'
In September of 1961, by order to show cause, the husband asked that the alimony payments be reduced. According to his affidavit, it cost him approximately $3,500 for Mary Ann's expenses during the 1960-1961 school year. Of this sum, $1,900 was paid for tuition, board and room, and travel NET INCOME AFTER GROSS BUSINESS YEAR SALARY COMMISSIONS EXPENSES EXPENSES ---------------------------------------------------------- 1958 $21,725.00 $ 721.99 $3,447.04 $18,995.95 1959 22,975.00 1,732.46 3,934.00 20,773.37 1960 24,225.00 2,552.97 4,011.02 22,766.95
At the time of the hearing (November 1, 1961) defendant was receiving an annual salary of $24,600.00.
Although defendant admits that his gross earned income in 1960 was approximately $350 per month greater than at the time of the interlocutory judgment, he says that his monthly epxenses ($1,900) have increased to the extent that they exceed the amount of his net income by almost $325 per month, exclusive of any support to plaintiff; at the time of the hearing he was unable to meet his current monthly bills. His financial predicament arose in the following manner. He increased the mortgage on the Newport Beach property where he maintained his residence; he took out a new FHA loan for the purpose of making improvements thereon; he borrowed $3,300 on a bank loan to purchase a 16-foot inboard ski boat used primarily for business entertaining; and he borrowed on a personal loan the sum of $2,400 for some unexplained purpose--the monthly payments on these loans aggregate $359.84. Other major items of monthly expense include state and federal income taxes: $388.68; food--$202.61; Mary Ann's maintenance at college--$294.20; child support (younger child)--$100.
Defendant is the regional supervisor of a leading life insurance company. For the twelve months immediately preceding the hearing on the order to show cause, he says, at least one-third of the expenses incident to the maintenance of his residence was incurred for the purpose of entertaining prospective customers and procuring the sale of additional policies. Ownership of the ski boat is stated to have been particularly successful; he furnished the names of five companies that had purchased more than $28,000,000 of group insurance as the result of entertaining persons on that boat.
Plaintiff's financial condition, on the other hand, was as follows. She sold the San Marino residence, after the divorce, for the net sum of $24,832.92. She kept $13,941.22 of this sum, investing $5,000 in securities; $9,900 was still on hand at the time of the hearing. With the balance of the proceeds from the sale, she purchased a smaller home in San Marino, the monthly payments on the unpaid balance being $99 per month.
Neither party has remarried nor has other dependents. Plaintiff was employed in New York as a school teacher prior to her marriage; she has not qualified as a teacher in this state. Except for support payments, plaintiff has no income save for small amounts earned each year during the weeks before Christmas.
It has long been settled that upon a proper showing 'the court possesses power to modify [a support] order because of changed circumstances, § 139 Civ.Code' (Bratnober v. Bratnober, 48 Cal.2d 259, 262, 309 P.2d 441, 443), the justification therefor depending on the facts and circumstances of each case (Bratnober v. Bratnober, Moore v. Moore,
Reed v. Reed, Kelley v. Kelley, Anderson v. Anderson, Triest v. Triest,No California decision reducing alimony payments has been cited, nor has independent research disclosed its existence, involving a situation in which the former husband's income was the same or greater (as here) without other circumstances warranting the reduction. For example, in Werner v. Werner, 120 Cal.App.2d 248, 260 P.2d 961, the husband had remarried and his former wife was employed at a salary of $90 per month plus room and board; in Brady v. Brady, 94 Cal.App.2d 1, 210 P.2d 69, the wife had inherited $17,500 and income-bearing property, and in Lamborn v. Lamborn, 80 Cal.App. 494, 251 P. 943, the husband was about to remarry, both parties were in their early thirties and the former wife was a trained nurse.
Notwithstanding his admitted (and steady) increase in income, defendant nevertheless insists that a reduction is proper because his expenses have increased. Let us analyze this argument. In 1958, after a full hearing, the trial court found that a suitable allowance for the wife's support was $425 monthly, or $5,100 per year. This represented more than 26% of his then net income after business expenses ($18,995.95). Under the order appealed from, plaintiff stands to receive $3,600 per year, or 16% of defendant's net income after expenses ($22,766.95)--a decrease of 10%. Defendant was employed by the same company and in the same capacity in 1958; no appeal was taken from the interlocutory judgment, and we must assume that he was satisfied with the percentage allocated for the wife's support at that time. The question, therefore, arises whether the new and different 'expenses' since the divorce justify the not inconsiderable reduction percentagewise that was ordered.
First, there is the item of $1,600 paid for Mary Ann's maintenance at college exclusive of her tuition, room and board and travel expenses (aggregating $1,900). Under the stipulation, mentioned earlier (and approved by the trial court), plaintiff consented to the payment by defendant of Mary Ann's 'expenses as may be required for the support of said child' while at college. Do the 'expenses' in question reasonably include the above item of $1,600, representing (as they do) almost the combined total of all charges made by the university for her attendance. We think not. Such generosity, approaching prodigality, is most praiseworthy; but the sum in question is simply being taken from the plaintiff and given to the parties' older child. The Dean family cannot afford any such extravagance.
Next, there are the expenses resulting from defendant's mode of living since the divorce. The ownership of a boat and the improvements of the Newport Beach residence may be necessary for the maintenance of his present business station and therefore worthwhile investments. But when the various loans are paid, the properties purchased (or improved) therewith will be his properties; they will inure to his benefit and not to the benefit of plaintiff. Even now they are of a value greater than his increased debts. But these debts, he says, place him in a poorer financial condition The only other justification for the order of modification would be the implied finding that plaintiff can and should seek employment. Except for interest on a savings account and dividends from securities purchased for $5,000, she has no other income (alimony excepted) save for some Christmas employment. As noted earlier, plaintiff was a school teacher in New York prior to her marriage in 1940; she does not have a teacher's certificate in California. Since plaintiff is presumably in her forties, cases involving younger women are not applicable. Her complaint for divorce alleged extreme cruelty; findings were waived, upon submission, so the particulars of her charge are not available. It is stated in Brawman v. Brawman, 199 Cal.App.2d 876, 19 Cal.Rptr. 106, (where the wife was in her mid forties) that upon dissolution of the marriage for an offense of the husband, 'the proposition that he shall continue to enjoy all the fruits of success while the wife shall be reduced to straightened living, does not commend itself to this court as fair treatment.' Too, '* * * A woman past middle age can seldom rehabilitate herself after a break in marriage relations and the court may properly safeguard her financial future where the marriage is dissolved for the offense of the husband.'
We realize that a* abuse of discretion is rarely encountered in proceedings of this kind. It was said in an early California case that one essential attribute of such abuse is that 'it must plainly appear to effect injustice.' (Clavey v. Lord, 87 Cal. 413, 419, 25 P. 493.) Under all the circumstances, that is the situation here.
The order is reversed.
WOOD, P.J., concurs.
FOURT, Justice.
I dissent.
The majority of this court seem to indicate that there were no changes in circumstance of sufficient gravity, between the date of the interlocutory decree and the date of the hearing upon the motion to reduce the payments to be made by the husband to the wife, to warrant a modification of the payment order. In short, the majority in effect state that the testimony of the husband is false and the statements of the wife are true. As I understand it, such is not the province of this court.
There can be no question but that (if the testimony of the husband is to be believed) there were many changes in the circumstances of the parties. Among them were the following: (1) one of the children became enrolled at the University of Oregon after the judgment and the husband was required to expend in excess of $3500.00 a year for her expenses; (2) the husband was required to pay approximately $2000.00 in doctor and dental bills for one of the children; (3) the husband was required to make a personal loan of $2400.00, of which over $2200.00 was unpaid at the time of the hearing, and further he was required to borrow $3300.00 to assist in the purchase of a boat which was used primarily in his business (of this loan over $2500.00 was unpaid at the time of the hearing); (4) the husband was required to increase the debt against his home and to make an F.H.A. loan for certain improvements (none of such obligations had been paid or satisfied at the time of the hearing); (5) the husband had increased his business cost expenditures, of which over $1700.00 was unpaid; (6) business in his field of endeavor became highly competitive and it was extremely difficult to succeed therein and required a great deal more effort and funds than in previous years; (7) the husband was required to sell his personal automobile and was without funds to secure another car; (8) his expenses increased approximately $1000.00 per month (his expenses exceeded his net income by a considerable The majority of this court seem to feel that the financial debacle of the husband came about in part because of his purchase of a boat which was used primarily in securing customers in his business. It was uncontradicted that the husband had sold several millions of dollars worth of group life insurance as the result of the use of the boat in his sales program. In any event it is fortunately not left to the members of this court to determine whether a businessman should or should not engage in recognized promotional activities--with the thought in mind of gaining additional business or to keep what business he already has.
Furthermore, in this particular case the wife is a qualified and certified teacher. She apparently is in the prime of life and seemingly enjoys excellent health. To say that because she was certified in New York only and therefore she cannot teach in California is to close one's eyes to the realities of life. There are hundreds of teachers presently teaching in California schools with temporary status based upon certifications from other states. In other words, it is my belief that the wife could work if she were so minded. I see no reason why she should not make a reasonable effort to help herself to some extent, thereby becoming in part independent and relieving the husband of a part of the drain upon his income. In any event these were matters for the trial judge to determine and not the members of this court. I think that we should not interfere under such circumstances.
There is nothing in the record in this case which in the slightest degree shows that the trial judge decided this case by whim, caprice, arbitrary conduct, ulterior motive, wilful disregard of the rights of either party or upon any untenable or unreasonable ground. The judge obviously and properly took into consideration the necessitous conditions of the wife and the financial ability of the husband and made his order accordingly.
The discretion involved in these cases necessarily should be and is lodged with the trial court. The trial judge has the opportunity of determining the credibility of the witnesses and of observing the parties at the time of the hearing. He is in a far better position to determine who is telling the truth and who is not. In this instance he believed the husband and apparently disbelieved the wife.
It is my judgment that there was no abuse of discretion in this case by the trial judge.
I would affirm the order.