Mergenthaler v. Mergenthaler

MOORE, P. J.

As a part of its decree of divorce the court awarded respondent support money and in addition thereto decreed “that the defendant pay to plaintiff the sum of $3,000, advanced by plaintiff to the defendant. ...” On appeal from the quoted order appellant denies liability for the sums advanced, contends that such demand may not be united with an action for divorce, and pleads the two-year statute of limitations as a bar to her recovery. (Code Civ. Proc., § 339, subd. 1.) He abandoned his appeal from the order for respondent’s support.

We are to determine first whether appellant incurred

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an obligation to repay the moneys advanced. The parties had married on March 24,1938. The action was filed on December 22, 1942. The court found that at the time of the marriage defendant orally agreed to provide respondent with the sum of $250 per month for the support of the household and for her personal expenses; that he had paid only a portion of the promised sums; that the advances had been made upon appellant’s oral promise to reimburse respondent by paying her in full the monthly sums promised; that the sums so advanced aggregated $4,575.31, and in addition she paid for the renovation and repair of appellant’s separate property the sum of $1,367.25; that of the total advances made the sum of $3,000 is due and unpaid to respondent.

That the parties made the oral agreement for the payment of the monthly sum was established by the testimony of respondent. She testified in detail as to each transaction, each conversation, each sum advanced and each sum repaid. She evidently kept careful accounts of moneys received and disbursed. Her total receipts from appellant in four and a half years aggregated $9,956.13. Under the agreement he owed her $13,500. In August, 1939, when she presented him with a statement of all the moneys she had advanced to him since their marriage appellant made no denial of its correctness or of his obligation to repay the sum. Throughout the period of coverture he made no objection to the advancement of funds by respondent for the maintenance of their home and for respondent’s personal expenses; neither did he ever deny his promise to reimburse her.

The husband assumes responsibility for the support of his family and upon his failure to provide such support his wife is authorized to purchase on his credit whatever is necessary for her maintenance. (Civ. Code, § 174;