Opinion
3-28-1955
Lucyle W. PENCOVIC, Plaintiff and Respondent, v. Francis H. PENCOVIC, now known as Krishna Venta, Defendant and Appellant. Civ. 16215.
Lucyle W. PENCOVIC, Plaintiff and Respondent,
v.
Francis H. PENCOVIC, now known as Krishna Venta, Defendant and Appellant.
March 28, 1955.
Hearing Granted May 25, 1955. *
Dooling, J., dissented.
Gross & Svenson, Van Nuys, for appellant.
Edwards & Friborg, Alan G. Banks, Oakland, for respondent.
NOURSE, Presiding Justice.
Plaintiff had a judgment of divorce on March 6, 1944, awarding her custody of her two minor children and directing defendant to pay her $20 a month for each child. The defendant remarried and has six other children by the second marriage whom he is required to support.
At a hearing on December 14, 1953, the superior court amended the original decree by ordering defendant to pay $50 a month for the support of each of plaintiff's children. The appeal from this order is based on the ground that there was no evidence to support it.
The evidence is that plaintiff has been gainfully employed at a salary of $200 a month, though handicapped for some weeks by an accident resulting in some diminishing of income. The children are now sixteen and fourteen years of age and both are attending high school. The parties belonged to a religious sect called 'W. K. F. L. Fountain of the World' and during their married life they travelled about the country, with the two children, 'hitch hiking', and defendant preaching the gospel according to their beliefs.
This society is a voluntary corporation, duly organized, with a set of officers, the defendant being the spiritual leader, or 'master'. No salary is paid to any of the members. All are supported at a 'home' maintained at Box Canyon, Ventura County, in this state, where about one hundred members reside. Funds for the support of the organization are contributed by both members and friends of the organization. There is evidence that on some occasions the organization advanced defendant moneys with which to gamble in Las Vegas and Reno. [Their theory was that the 'master' must be endowed with good luck which would bring more money to the organization, but in no case any profit to defendant personally.] The 'master' always lost, both at the wheel and at the 'One-armed Bandit.'
This is not a case which calls for any religious panegyrics. Religion is not involved in our decision in any sense of the word. The appeal rests solely on the single ground that there is no evidence, oral or documentary, and no presumption or inference which shows an ability to pay the increased award.
The motion to increase the award was heard at the same time as the citation for contempt for failure to pay the original award. At the close of the hearings the trial court found that there was no showing of 'ability to pay'. On that ground the court discharged the contempt proceeding--the inability to pay $20 a month for each child--and forthwith ordered defendant to pay the increased sum of $50 a month for each child.
Since the award for the two children had been made the appellant became the father of six more children dependent on him for support. Whether it was on that ground that the trial court discharged the contempt order does not appear. Certainly it is a matter which must be taken into consideration unless we follow the timorous practice of 'judicial discretion' which often becomes the failure of judicial responsibility. All the evidence without conflict disclosed that the appellant was without funds and without any visible means of raising money to support the court order.
This is not, therefore, a case of breach of discretion. It is a case of no discretion at all. There was no power in the superior court to order the appellant to forego his religious principles and to seek employment elsewhere, without some evidence of a possibility that he could earn more at another calling. If all the eight children were entitled to $50 a month for his support that would require the appellant to pay $400 a month with no prospect of his raising any substantial part of it.
Order reversed.
KAUFMAN, J., concurs.
DOOLING, Justice.
I dissent. My associates, while disclaiming that their opinion is based on the ground of the appellant's religious freedom, say: 'There was no power in the superior court to order the appellant to forego his religious principles and to seek employment elsewhere, without some evidence of a possibility that he could earn more at another calling.'
There is such evidence. The record shows that during the second World War appellant was gainfully employed. He is an able-bodied man who through choice lives a life of poverty without seeking gainful employment.
A father has both a moral and legal duty to support the children whom he has brought into the world. This duty cannot be shirked by a wilful refusal to earn money. The court may take into consideration in fixing the amount to be contributed by the father for his children's support not only his 'actual earnings' but "his ability to earn money" as well. Webber v. Webber, 33 Cal.2d 153, 160, 199 P.2d 934, 939.
If this appellant can escape his legal obligation to support his children then any father can abandon his children, enter a religious cult wherein all property is owned by the community, and the courts will thereafter be powerless to compel him to contribute anything to his children's support.
I hope that I yield to no one in my support of religious freedom, but there are some limits to all rights and in my opinion the limit is passed when the claim of religious freedom is used to excuse an able-bodied father from supporting his minor children. --------------- * Opinion vacated 287 P.2d 501.