Russ v. Russ

PEEK, J.

This appeal is from an order and judgment entered pursuant thereto, modifying a final decree of divorce granted to plaintiff.

By the terms of said decree defendant was ordered to pay to plaintiff $100 per month for the support and maintenance of herself and the minor child of the parties for a period of eighteen months, and thereafter to pay to plaintiff $35 per month for the support of said child.

The record presented to us consists of the notice of motion, affidavit for order to show cause, order shortening time for service of notice of motion, all filed on August 26, 1943, order modifying final decree of divorce, and supplemental affidavit of plaintiff, filed on January 31, 1944. The order to show cause is the only document in' the record showing service upon counsel for the defendant. An affidavit of service by mail of a copy of the order to show cause and the supporting affidavit of plaintiff shows that copies thereof were mailed, pursuant to an order of the court, to defendant, c/o Sadie Russ, Ferndale, California, who, as'appears from respondent’s brief, is the mother of defendant.

By the first affidavit plaintiff alleges that since the final decree, conditions and circumstances surrounding the parties and upon which the original order was based have materially changed; that defendant is now in the armed forces of the United States; that by virtue of the Servicemen’s Dependents Allowance Act of 1942 [77th Congress—Pub. Law 625; 37 U.S.C.A. § 207] he can support plaintiff and said minor child with a minimum obligation on his part; that plaintiff is in need of said maintenance and support, and concludes with a request that defendant be ordered to pay to her the sum of $50 per month for her support and maintenance and $50 per

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month for the support and maintenance of said minor. Plaintiff’s supplemental affidavit alleges that for more than one year she has paid the premiums on two insurance policies, which policies will pay to said minor the sum of $5,000 at about the time she will finish high school, and will be used according to the plan of plaintiff to complete the education of said minor ; that under the provisions of said policies in the event plaintiff should die they automatically would become fully paid up; that she knows of no other way she can guarantee said minor’s education; that in view of the social standing, income and wealth of defendant, $5,000 is a reasonable sum to expend for such purpose; that the premiums average $25 per month, and during the past year plaintiff has paid said amount in full; that she is now unemployed and is without income other than the sum of $35 per month received from defendant for the maintenance of said minor under the terms of the present order ; that in recent months she has been able to work only half days earning approximately $50 per month; that her expenses are considerably over $100 per month; that she intends to enter a school for dental nurses so as to be better fitted to provide for said minor child and herself; that the tuition fee for such schooling is $175, and with the premiums on the insurance policies her monthly expenses will be approximately $125 to $150; that she has not sufficient funds to meet said expenses; that defendant is in the army and that the law .provides that a divorced wife with a minor child may receive up to $72 per month from the government with a contribution from defendant of only $22; that defendant has other property in excess of $25,000 and is able to pay.