Becker v. Becker

SPENCE, J.

Plaintiff appeals from an order modifying a decree of divorce by reducing the amount to be paid by defendant to plaintiff for support and maintenance from $75 per month to $45 per month.

The interlocutory decree had been entered in favor of plaintiff on December 19, 1941, after defendant’s default. The final decree, embodying the terms of the interlocutory decree, had been entered on January 13, 1943. On February 2, 1943, defendant served and filed a notice of motion for modification and the motion was thereafter denied on February 11, 1943. On May 7, 1943, defendant served and filed a second notice of motion for modification and the motion was thereafter granted on May 26, 1943. The reporter’s tran

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script of the testimony taken on the hearing of the second motion is before us on this appeal but there is no transcript of the testimony taken upon the hearing of the divorce proceeding or upon the hearing of the first motion for modification. The second motion was heard upon the affidavits of the parties and upon the oral testimony of the parties and other witnesses.

Upon the hearing, it appeared that defendant was earning about $50 per week and that his family consisted of himself and his second wife. It further appeared that he was indebted in the sum of several hundred dollars in addition to the sum of $150 which he had borrowed shortly before the hearing to pay to plaintiff on account of alimony. The only property owned by defendant was a dwelling house of small value at Carmel, an automobile and a tractor which was being held as security for some of his indebtedness. It appeared that plaintiff was the owner of a dwelling house of small value in which she was residing in Santa Clara. This property had apparently come to her in a division of the community property made by the parties, plaintiff having taken the Santa Clara property and defendant having taken the Carmel property. Plaintiff had been able to work and had worked during part of the married life of the parties and thereafter, but she testified that more recently she had worked only irregularly because of her health. She presented letters from two doctors which were admitted in evidence. These letters showed a normal woman, 49 years of age, except for her claimed “nervousness, feeling of weakness, periods of crying, unable to continue to work, inward feeling of shakiness.” One doctor’s report states, “She thinks she is about through the change of life although she still has hot flashes.” Her trouble was diagnosed as neurasthenia. Complete rest was recommended by one doctor but the other doctor made no recommendation, stating only, “She is unable to do regular work.” These reports were based largely upon subjective symptoms which plaintiff had described to the doctors and the trial court may well have believed that plaintiff had exaggerated or even misrepresented these symptoms. The trial court may also have been of the opinion that these symptoms had been more pronounced at the time of the divorce hearing and at the time of the hearing on the first motion and that plaintiff’s nervous difficulties had practically terminated at the time of the hearing of the second motion and would termi