Whelan v. Whelan

California Court of Appeal Sep 22, 1948 No. Civ. 3933Published

Before: Mussell

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Holding. The court held that the trial court did not abuse its discretion in awarding alimony pendente lite, counsel fees, and costs, as a wife is not required to exhaust her own capital or non-income producing property before seeking support from her husband.

Issues

Whether the trial court abused its discretion in ordering the defendant to pay alimony pendente lite, medical expenses, costs, and counsel fees.
Whether a wife must exhaust her own separate property or capital before being entitled to support pendente lite.

Disposition. affirmed

Quotations verified verbatim against the opinion

“She is not required to first impair the capital of her separate estate.”

“Under the facts presented, we conclude that plaintiff is not required to exhaust the funds presently held by her before seeking support from her husband.”

“The award made was not disproportionate to the needs and assets of the respective parties and therefore not an abuse of discretion.”

[691]

MUSSELL, J.

In this action for divorce the defendant appeals from an order of the superior court directing him to pay plaintiff the sum of $30 per week as and for alimony pendente lite for the support of herself, and the further sum of $250 for counsel fees, and for $20 costs. It was further ordered that defendant pay to plaintiff all reasonable fees, expenses and charges in relation to the birth of the unborn child of plaintiff and defendant. An order to show cause was issued on the verified complaint and the hearing had on affidavits of the parties.

In the amended complaint plaintiff alleges that she is without money or funds with which to support herself or prosecute this action; that defendant is an able-bodied man, an attorney at law, with a lucrative practice, and derives an income therefrom, the exact amount of which is unknown to plaintiff; that plaintiff is informed and believes, and on that ground alleges that defendant earns and is capable of earning approximately $2,000 per month, and is able to pay a reasonable monthly sum for the support and maintenance of plaintiff and her attorney fees.

Defendant filed an answer to the amended complaint, together with a cross-complaint for divorce. He denied that plaintiff was without money or funds with which to support herself or prosecute the action. In his affidavit, filed in opposition to the order to show cause, defendant stated that plaintiff had ample funds of her own from which to support and maintain herself and pay her counsel fees and costs; that during the marriage of the parties he gave plaintiff a weekly allowance of $100 for her own use; that in addition to this allowance he paid all of the household and living expenses; that during the marriage defendant gave plaintiff in excess of $5,500 in cash, and gave her a check for $900 on the day the complaint was filed. He further stated that he gave plaintiff 200 shares of stock in the San Diego Gas & Electric Company of the approximate value of $3,000; that plaintiff had four separate bank accounts in her own name in which there was deposited a considerable amount of cash.

Plaintiff in her counteraffidavit stated that the total amount of the payments to her during the marriage was the sum of $3,000, out of which she paid the household expenses; that she received and cashed the check for $900 and has used the money for living expenses since the separation of the parties. Plaintiff admitted that she had property in her possession as

Whelan v. Whelan

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MUSSELL, J.

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