Webb v. Webb

California Court of Appeal Oct 23, 1970 No. Civ. 26828Published

Before: Shoemaker

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Holding. The trial court abused its discretion by denying a motion to modify alimony where the evidence established a significant change in circumstances, including the wife's gainful employment and the transfer of child custody to the husband.

Issues

Whether the trial court abused its discretion in finding no sufficient change of circumstances to justify a modification of alimony.

Disposition. reversed

Quotations verified verbatim against the opinion

“Certainly, the undisputed evidence established plaintiff’s right to have such payments substantially reduced, and the trial court’s determination to the contrary must be deemed an abuse of discretion.”

Opinion

SHOEMAKER, P. J.

This is an appeal by plaintiff Eugene Webb from an order denying his motion for modification or termination of alimony.

In July 1964, plaintiff Eugene Webb commenced a divorce action against defendant Aileen Webb. Defendant cross-complained, and on December 24, 1964, she was granted an interlocutory decree of divorce which approved

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the provisions of a nonintegrated property settlement agreement. Pursuant to the interlocutory decree, plaintiff was ordered to pay alimony in the amount of $1,050 per month and child support in the total amount of $300 per month.

On April 20, 1966, a final decree of divorce, which reaffirmed the provisions of the interlocutory decree, was entered.

On June 17,1968, plaintiff moved for an order terminating or decreasing alimony and awarding him custody of the parties’ 13-year-old son, Eugene. Defendant filed a cross-motion for an order increasing alimony.

When the matter came on for hearing, counsel advised the court that pursuant to the agreement of the parties, custody of the boy Eugene had been transferred from defendant to plaintiff.

Evidence was then taken relative to plaintiff’s motion for a termination or decrease of alimony and defendant’s cross-motion for an increase in alimony. Plaintiff testified that he and defendant were married in 1940. In 1964, when the interlocutory decree of divorce was entered, plaintiff, a neurosurgeon, earned a net income of $36,843.25. His net income for the preceding year, 1963, was $27,629.99. Defendant, who was also a physician, was unemployed at the time of the divorce, and she was awarded custody of the parties’ three minor children. In addition to the provisions for child support and alimony, defendant was awarded assets and property of considerable value. Thus, according to plaintiff’s testimony, defendant received a residence valued at $100,000, furnishings worth $15,000 to $20,000, certain Clear Lake real property worth $150,000, and stocks and bonds worth $10,000. Plaintiff received only one major asset, consisting of real property valued at $11,000.

Webb v. Webb

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SHOEMAKER, P. J.

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