In 1976 no evidence was presented and the court made no findings about the parties' financial circumstances. (See Sande v. Sande (1969) 276 Cal.App.2d 324, 327 [ 80 Cal.Rptr. 826].) In 1980 the court was required for the first time to litigate the conflict between the parties about the proper amount of child support.
Upon a consideration of all of the factors involved the trial court must exercise its discretion in determining whether or not to modify the order of child support. ( Primm v. Primm (1956) 46 Cal.2d 690, 693 [ 299 P.2d 231]; Sande v. Sande (1969) 276 Cal.App.2d 324, 330 [ 80 Cal.Rptr. 826] .) Our review of the entire record reveals nothing to indicate that the court considered the needs of the children or James' present ability to pay support in making its order.
In fact it is error to receive evidence on matter which is thus excluded as an issue. ( Fuentes v. Tucker (1947) 31 Cal.2d 1, 4-5 [ 187 P.2d 752]; Sande v. Sande (1969) 276 Cal.App.2d 324, 327-328 [ 80 Cal.Rptr. 826]; Butler v. Stratton (1949) 95 Cal.App.2d 23, 29 [ 212 P.2d 43].) (17b) The contract as attached to the complaint in the file was before the court. The fact that a dismissal (nonsuit) was granted on the complaint did not physically remove the contract from the file and it was still a part of the cross-complaint which had pleaded it by reference.
]” ( Gruen, supra, 191 Cal.App.4th at p. 638, 120 Cal.Rptr.3d 184; but see In re Marriage of Murray (2002) 101 Cal.App.4th 581, 597, fn. 11, 124 Cal.Rptr.2d 342( Murray ) [“several cases that hold no such showing is necessary. (See, e.g., Sande v. Sande (1969) 276 Cal.App.2d 324, 329 ;Zinke v. Zinke (1963) 212 Cal.App.2d 379, 382–384 ;Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 306–307, 309–311 .)”].) “[T]he reason for the change of circumstances rule is to preclude relitigation of the same facts.”
) We are aware, however, that there are several cases that hold no such showing is necessary. (See, e.g., Sande v. Sande (1969) 276 Cal.App.2d 324, 329; Zinke v. Zinke (1963) 212 Cal.App.2d 379, 382-384; Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 306-307, 309-311.) We do not attempt to resolve this issue, for reasons that will appear.
Buttrey v. Buttrey, 214 Ala. 465, 108 So. 35; Angel v. Todd, 368 S.W.2d 224 (Tex.Civ.App.); Dixon v. Dixon, 251 Ark. 927, 475 S.W.2d 695. Courts should consider the financial ability of a parent to pay before making allowances for college education of minor children, and should not place undue financial burden on the father. Booth v. Booth, 122 Ill. App.2d 1, 258 N.E.2d 834; Sande v. Sande, 276 Cal.App.2d 324, 80 Cal.Rptr. 826; Hanerkam v. Hanerkam, 221 Pa. Super. 182, 289 A.2d 742. Attorney fees on the divorced wife's application for modification of the decree as to support or custody of the children should be denied where the evidence shown that the divorced wife was possessed of a substantial income which was completely adequate to pay her own attorney's fees. Long v. Long, 39 Ariz. 271, 5 P.2d 1047; Calbath v. Calbath, Fla.App., 258 So.2d 50. Ralph W. Walker, II, and Ralph Gerald Walker, Marietta, Ga., for appellee.