Caldwell v. Caldwell

DRAPER, P. J.

Plaintiff wife appeals from order denying her motion to increase allowance for support of a minor daughter.

Interlocutory decree of divorce awarded custody of the two older children to defendant husband, and the three younger to plaintiff wife. Husband was ordered to pay $1,250 per month as alimony, and $200 per month for support of each of the three children in wife’s custody. These provisions were incorporated in the final decree. In June, 1960, wife filed her affidavit alleging that Julie, the eldest of the three children in her custody, was completing grammar school. Wife desired to enter Julie in a private boarding school for her four years of high school work, and sought increase of Julie’s support award in the amount charged therefor, less an adjustment for the decrease in wife’s expenses resulting from Julie’s residence at the school. Order to show cause was issued, and hearing held.

Husband’s testimony showed that his net worth was $973,500, some $150,000 more than at the time of the interlocutory decree. His income, exclusive of capital transactions, had decreased by some $25,000 from the year 1957, that considered in the award made in the interlocutory decree. Profits of a store owned by husband had been $20,000 in 1957, had decreased in 1958 and 1959, and had ceased at time of hearing in this matter because the store had been sold. There was evidence, however, of capital gains actually realized upon sales of securities, although the precise amount thereof is not here shown because income-tax returns in evidence at trial are not in the record here. Husband testified also that the eldest child, a girl, had attended the same private school to which wife desired to send Julie, and that the second child, a son, also had attended a private high school before the parties separated.

Wife’s counsel sought to call her as a witness. The court said “I understand she is just going to testify as to cause for more money,” indicated that it did not desire to hear her, and, when counsel persisted, announced that the motion for

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increase was denied. The court denied two further requests for permission to call wife as a witness, and twice reiterated its denial of the motion. The wife did not testify.