In Re Marriage of Reese

California Court of Appeal Aug 23, 1977 No. Civ. 50930Published

Before: Hanson

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Holding. The court held that an indigent petitioner is entitled to proceed with a dissolution of marriage without paying filing fees absent evidence of bad faith, and that a child support order leaving a parent with insufficient funds for subsistence is an abuse of discretion.

Issues

Whether the trial court erred in requiring an indigent petitioner to pay filing fees for a dissolution of marriage.
Whether the trial court abused its discretion in setting a child support amount that exceeded the parent's ability to pay.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Husband made a prima facie showing of indigency and in the absence of conflicting evidence he was entitled to proceed to judgment in forma pauperis.”

“In awarding child support, a basic consideration of the trial court must be the parent’s ability to meet the financial needs of the children.”

Opinion

HANSON, J.

Clint Reese appeals from trial court orders regarding the payment of filing fees and child support in connection with the interlocutory judgment of dissolution of his marriage.

[123]

Facts

Clint and Juanita Reese were married July 5, 1968, and separated two years later. The three children of the marriage have resided for at least the last five years with their mother, Juanita Reese.

Husband filed a petition for dissolution of marriage on February 4, 1976. At the same time, he filed a declaration in support of an application for leave to file in forma pauperis. Husband therein declared that his estimated earnings as a musician were $250 a month and he had no other resources. On the basis of this declaration, the court granted permission to proceed in forma pauperis.

Husband thereafter filed a financial declaration in which he reiterated his estimated earnings, and declared that he owned a guitar and an amplifier, and had living expenses of $270 per month.

At the interlocutory hearing held on June 11, 1976, husband’s financial status was examined by the court. Husband testified that his wife was “on the County”; that he was a musician; that he worked with a group approximately two days per week; and that he received from $30 to $45 per day. Since this was a default hearing, no conflicting evidence was presented. The trial court granted the petition for dissolution of marriage, granted custody of the three children to wife, ordered husband to pay a total of $195 per month child support, and also ordered him to pay filing fees (contradicting its previous order).

An interlocutory judgment incorporating these orders was entered on October 26, 1976. Husband moved for a new trial and reconsideration of the court’s orders relating to child support and filing fee on the ground of insufficiency of the evidence. This motion was heard and denied, without the taking of any further evidence, on December 3, 1976.

Issues

Husband contends that the order requiring him to pay filing fees deprived him of his constitutional right to obtain a dissolution of his marriage and that the order for child support constituted an abuse of discretion because it was excessive in amount.

In Re Marriage of Reese

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HANSON, J.

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