In Re Marriage of Smaltz

Opinion

CALDECOTT, P. J.

Charles M. Smaltz appeals from an interlocutory judgment of dissolution of marriage which ordered, inter alia, that appellant husband reimburse the marital community for spousal support payments made by him to a former spouse out of community funds.

The parties had been married for approximately three years. There were no children of this marriage.

1

At the date of separation, both appellant and respondent Rosemarie H. Smaltz were employed with a net monthly income of $1,741 for appellant, and $1,310 for respondent.

[570]

This was the second marriage for both parties. Pursuant to court order entered prior to the parties’ marriage, appellant paid $450 per month in spousal support payments to his former wife throughout the course of his marriage to respondent. These support payments, in the total sum of $16,200, were made out of community property funds earned by appellant and respondent during their marriage. The trial court found that there were no separate funds available to appellant during the marriage from which the payments could be made.

The interlocutory judgment provided that “No spousal support shall be awarded.”

2

However, it further ordered that: “13. The marital community is entitled to be reimbursed for spousal support payments made by respondent to a former wife out of community funds and pursuant to findings of fact and conclusions of law in the total sum of $16,200.00, and respondent is obligated to pay to petitioner one-half of said sum, being $8,100.00.” It is from this paragraph of the judgment that the appeal is taken.

Appellant contends that the trial court was in error in requiring him to reimburse the marital community for spousal support payments made to his former wife out of community funds. He argues that, as there was no separate property from which the support payments could have been paid, it is inequitable to require reimbursement to the marital community. On the other hand, respondent argues that reimbursement for support payments is always proper where the wife did not consent to such expenditures.