Nicholas v. Nicholas

MOORE, P. J.

In February, 1946, Idella M. Nicholas and her husband, respondent herein, terminated their community interest in certain property and executed a writing to evidence their agreement. All the community property of substantial value was conveyed to Idella as her own separate estate with the agreement that the income therefrom was sufficient to provide support for the children and that no payments for their support would be required of respondent. Thereafter, Idella supported her children with such income until the time of her filing the complaint herein on behalf of Carolyn whereby she demanded an order requiring respondent to pay Idella $60 per month for Carolyn’s support, and for counsel fees. Respondent filed his cross-complaint for a declaration of the rights and obligations

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of the parties and for judgment imposing a trust upon such of the real property conveyed to Idella under the property settlement as may remain in her ownership.

Following the trial of the issues raised by pleadings the court made findings that respondent had transferred income property to his wife as agreed; that by the terms of their settlement it was the intention of the parties that income derived from the property was sufficient for the support of their children; that it should be used only for the support of the minor children unless there was an excess of income over the amount necessary for their support; that Idella knew that in consideration of the conveyance of such realty to her she elected to waive any further claim for alimony, support money or attorney fees and that she agreed that she would use the income from the premises for the support of the minor children; the court found also that the property has at all times and now is sufficient to support the minor children including Carolyn but that Idella sold part of the property, purchased an automobile for her own use and thereafter mismanaged the balance, substantially reducing the income. However, the income is still sufficient for the support of Carolyn. It was further determined that the parties intended that the property conveyed to Idella would not be sold until after the children became self-supporting or of lawful age and that it should be held by Idella in trust for the support of Carolyn.

Accordingly, judgment was entered denying plaintiff any relief and establishing a trust in the realty with Idella as trustee ordered to collect income therefrom and apply it to plaintiff’s support until the latter attains majority, is married or becomes self-supporting.