Opinion
8-3-1953
HALL v. HALL. * Civ. 19288.
Sheppard, Mullin, Richter & Balthis, Los Angeles, for appellant. Moore, Trinkaus & Binns, Los Angeles, for respondent.
HALL
v.
HALL. *
Aug. 3, 1953.
Rehearing Denied Sept. 1, 1953.
Hearing Granted Oct. 1, 1953.
Sheppard, Mullin, Richter & Balthis, Los Angeles, for appellant.
Moore, Trinkaus & Binns, Los Angeles, for respondent.
SHINN, Presiding Justice.
Judgment was entered in this action awarding plaintiff a divorce on the ground of desertion, making a division of community property, awarding plaintiff for her support until the further order of the court the sum of $350 per month, requiring defendant to maintain in force certain insurance policies and directing him to pay to plaintiff's attorney $750 as attorney's fees and $25 costs, to be paid in installments of $50 per month. Defendant made a motion for a new trial which was denied. He also made a motion to vacate the judgment and to enter another and different judgment modifying the allowance for support of plaintiff. This motion was denied. Defendant has appealed from those parts of the judgment awarding plaintiff $350 per month for her support and requiring defendant to pay plaintiff's attorney's fees. He has appealed also from an order that he pay the cost of printing plaintiff's brief on the appeal, and to her attorney $200 fees on the appeal, at the rate of $50 per month. Although defendant had a cross-complaint on file seeking a divorce this was dismissed, and the evidence which he introduced related solely to the property and finances of the parties.
The parties were married March 1, 1930 and separated June 8, 1950; they have two unmarried daughters, Mary Ellen and Suzanne, the former then 21 years of age, the latter aged 16. Pursuant to stipulation the court made a division of all the community property. Plaintiff was awarded the family home appraised at $28,000, subject to an indebtedness of $5,000; household furniture and furnishings valued at some $3,000; one 1946 Dodge automobile; certain government oil and gas permits or leases of uncertain value; property in New Mexico of indeterminate value; 180 shares of stock of Bohemian Distributing Company worth $3,600, and a few dollars in her possession. Defendant was awarded a 1949 Studebaker car, a law and reference library (value not stated), and 180 shares of stock of Bohemian Distributing Company, pledged for an indebtedness of $3,000. United States Savings Bonds of $125 were ordered sold, the proceeds to be paid to plaintiff's attorney on account of the fees allowed. The defendant was ordered to maintain in force life insurance policies of $5,000 for the benefit of each of the daughters and to maintain for a period of three years a $5,000 policy in favor of the plaintiff. The court made no findings with respect to the income of either of the parties, as to their ownership of separate property, nor as to the amounts required to meet the necessities of the respective parties although it was found that $350 per month was a reasonable amount to be allowed plaintiff personally for her support. There was no finding as to whether plaintiff is in good health and qualified and able to obtain remunerative employment. It was found, however, that she has not maintained any vocational skill or trade and that she was at the time of trial without a vocation. It is conceded that neither of the parties owns separate estate nor has income other than the salary received by defendant as a Judge of the United States District Court. While it appeared that in the past ten years there had been income from the oil and gas holdings of $5,000 or $6,000 it was agreed that they had no present market value. Although the daughter Mary is of age, it was stipulated that defendant would pay each of the daughters $100 per month until she marries or completes her education and it is not questioned that he had been paying those amounts. In the year preceding the trial Mary earned approximately $500 and Suzanne approximately $265. The daughters live with their mother in the home, taxes upon which amount to about $600 per year. Plaintiff has received substantial sums from her mother as advances upon her inheritance but declined to state the amounts of such advances.
We must take that view of the evidence which tends most strongly to support the implied findings that $350 per month is reasonably required for the support of plaintiff and that defendant is able to pay said sum without undue hardship. The briefs contain computations and arguments upon these issues which are widely at variance. Plaintiff estimated the necessary living expenses of herself and the daughters while living in the home at $736 per month. From defendant's annual salary of $15,000 he has been receiving, after deductions, $1,044.40 per month. He testified, without contradiction, that his living expenses were $410 per month, that he had been assessed additional income tax for 1951 of $471.40, the cost of which was $40 per month, and that he was under medical treatment, and would be, indefinitely, at a cost of $50 per month. He has had surgery at a cost of $100 above his Blue Cross recipts and may need further surgery. Until the income tax liability is discharged defendant's minimum needs will amount to $500 per month; after that time they will amount to $460 per month as long as he is under medical treatment. He is required by the judgment and order to pay $100 per month for four months and thereafter $50 per month for 8 1/2 months for attorney's fees, the amount of $750 presumably having been reduced by $125 or thereabouts through sale of the bonds. Defendant will also have an obligation to pay fees to his own attorneys and his own costs of the litigation. It should be assumed that these sums would not be less than the amounts awarded for the fees of plaintiff's attorney and for costs. In addition he has unsecured debts of $650. Defendant's income is insufficient to meet his own necessary expenses, the amount of which is not disputed, and the amounts he must pay plaintiff and the daughters, including the insurance premiums, which total $610 per month. In a year's time there would be a deficit of about $800, with nothing paid upon account of his present debts, the attorney's fees and costs of litigation. He would be in debt to the extent of some $3,000, exclusive of the secured debt, and without any assets with which to reduce the debts except the Bohemian stock which is unlisted and not readily saleable. These estimates do not take into consideration any emergency expenses. It was in evidence that defendant is occasionally required to hold court away from Los Angeles. During these times he must maintain his living quarters in Los Angeles and receives an expense allowance of $10 per day. His necessary expenses during these absences exceed his allowance at the rate of $100 per month. It is a mathematical certainty that defendant has insufficient income to meet his own living requirements and to comply with the judgment. He can only choose which of his obligations he will meet and seek deferment of the remainder. It is argued by plaintiff that defendant's income tax liability will be reduced by reason of his support of plaintiff; defendant testified to the contrary, and contends that it will be increased under the new conditions. We need not pursue the matter. It is a minor factor.
As stated by the trial court '* * * Judge Hall occupies a very important position, a position in which he has to keep up a certain standard of living. * * * There is a certain dignity that he has to maintain there, and he has to have something to live on to maintain that standard.' We thoroughly agree, but would add that one cannot maintain the dignity due to such an office and at the same time plead poverty to his creditors. The court should seek a reasonable solution of the problem which would enable defendant to free himself from the embarrassment of his pressing debts.
So far we have been discussing only defendant's ability to pay. As the learned trial judge explained to Mrs. Hall it was necessary to determine first 'what amounts can be taken from him (defendant) and still give him sufficient to live upon. Secondly, what your needs are. And thirdly, your age enters into it, your ability to get out and support yourself.' These matters were given the consideration of the court with much patience and understanding. As previously stated Mrs. Hall's demand for $736 per month was readily perceived by the court to be excessive.
As we read the record it becomes clear that the award of $350 per month was intended by the court to provide for a temporary situation. The court stated to Mrs. Hall that her use of the house would be taken into consideration whether it was found to be her separate property, as she claimed, or community property, as the court found. In either case occupancy of the house would relieve her of the necessity to pay rent. And at the same time the court stated: 'I have had in mind the fact that the plaintiff is a comparatively young woman, her age, according to the testimony, being now 42 years. She appears to be in good health, and I see no reason, notwithstanding the fact that she has been a housewife for some twenty-two years, why she cannot adjust herself so as to earn a portion of her own living.' The record is barren of even the slightest suggestion upon the part of plaintiff that she has any such intention or recognizes that she has any such duty. She is not obliged to take employment, but her capacity to support herself, at least in part, as the court told her, is an important fact to be considered. Plaintiff is not one who is necessarily dependent upon others for her support. The record shows in striking manner that she is a woman of unusual intelligence and force. In discussions which took place in the court's chambers, respecting agreements as to the issues and the disposition of the community property, plaintiff practically took charge of her own case, in the presence of her own able counsel. She attempted to make bargains with the court and argued her contentions with an admirable degree of understanding. During the trial she was not content to rely upon her attorney to conduct her case but frequently interrupted the proceedings. It is clear, as the court stated, that there is no need for Mrs. Hall to remain unemployed, nor is there any necessity for her to occupy her present home if she remains unemployed. According to an affidavit of defendant, which was uncontradicted, the residence has a rental value of $300 per month and the taxes are $600 per year.
In a dispassionate view of the situation of the parties defendant will be seen living in an $85 per month apartment and plaintiff in a $28,000 home which is now her separate property and has a rental value of $300 per month. Defendant will be performing his duties as a Judge of the United States District Court, and while he will be providing the means of livelihood for all concerned until the daughters have finished their education or married, he will be unable to free himself from debt. Plaintiff, a woman 42 years of age, will be unemployed but in good health and capable of following some gainful employment. However desirable it may be from her viewpoint to be maintained in comfort, occupying a home at a cost of $300 per month, it is our opinion that a judgment which favors a divorced wife to such an extent is not a reasonable solution of the problem. No claim is made, nor do we believe that one could reasonably be made, that defendant should live more modestly. It appears to us that his stated requirements are close to the minimum. The same cannot be said of the provision which the judgment makes for the support of plaintiff.
The considerations which are controlling in such cases are the reasonable necessities of the wife and the reasonable ability of the husband to provide for those necessities. Section 139 of the Civil Code both grants and limits the court's power to award support to the innocent wife. The convenience and comfort of the parties are to be considered in proper cases but the husband should not be required to suffer all the hardship merely because he is the one responsible for disruption of the marriage. Support of the innocent wife in the event of divorce is an incident of the husband's marital obligation. It is awarded because the duty of support does not end with a decree of divorce for fault of the husband. It is measured by well settled rules and is not imposed as an unregulated penalty.
Defendant's salary is insufficient to enable the parties to maintain separate establishments in the manner to which they have been accustomed, although the necessities of life are well within their reach. Opinions will differ with respect to the proper division of inadequate income in such cases. The facts of the present case are unique. Its counterpart will not be found among the cases cited in the briefs. They are of no assistance to us in finding a solution for the problem which is presented by the record. We are satisfied that there are compelling reasons for a modification of the judgment that will enable defendant to rid himself of his present unsecured debts and to live within his income. We believe that the order for support should be modified by reducing the amount thereof from $350 per month to $200 per month until the further order of the court.
One fact to be considered upon a further hearing will be whether defendant is still obligated to pay, or is paying, a monthly sum to Mary Hall. We are also of the opinion that defendant should not be required to pay an amount for plaintiff's support which will enable her to occupy the home under the existing conditions and be relieved of all duty to obtain employment. It may well turn out to be to her advantage to qualify herself for employment commensurate with her undoubted ability.
We find no merit in the appeals from the allowances of attorney's fees for the trial or on the appeal. It was stated, and not questioned, that Mrs. Hall's attorney at the trial had devoted 80 hours to the case and the record shows that her interests were well protected. We are of the opinion that the allowance of $750 was reasonable and that $200 as a fee on the appeal from portions of the judgment was not excessive.
The judgment is modified by striking the amount of $350 therefrom and substituting therefor '$200 per month until the further order of the court' and as modified is affirmed. The order awarding attorney's fees and costs is affirmed; respondent to recover costs of appeal.
WOOD, J., concurs.
VALLEE, J., deeming himself disqualified, did not participate. --------------- * Subsequent opinion 267 P.2d 249.