Levie v. Levie

SHINN, P. J.

The present appeal is from an order denying the application of plaintiff Shirley Levie for an increase in the amount axvarded her for support of herself and txvo minor children by decree of divorce in 1954. The factual basis for the application ivas the asserted increase in the necessities of plaintiff and the children and the ability of defendant to pay increased support, due to his larger earnings and financial xvorth. The ground of the appeal is, of necessity, a claim that the order appealed from amounted to abuse of the court’s judicial discretion. We cannot agree with this contention. Defendant also made application for a reduction of the payments imposed upon him by the decree. His application was denied and he has not appealed.

The interlocutory judgment was entered July 30, 1954; it awarded plaintiff a decree of divorce, directed a sale of a parcel of real property, with each party to receive one-half the proceeds, divided the personal property, of no great value, and axvarded plaintiff $400 per month for the support of herself and $100 per month for each of the minor children, aged 1 and 2 years, respectively. From the sale of the property plaintiff received some $9,000 of which she retained at the time of the latest hearing $4,400. In 1955 plaintiff applied for increased support for herself and the children, which application was denied. Plaintiff’s application filed February 16, 1962, sought $600 per month for her support and $200 per month for each of the children. Plaintiff represented that the minimum amount required for the support of herself and the children was $761 per month. At the time of the divorce defendant’s income from his law practice was $13,000 per year, and it had not been increased at the time of the 1955 hearing. In the meantime defendant had remarried and his living expenses had largely increased.

There was received in evidence a copy of a financial statement defendant furnished the Bank of America January 10, 1962, listing assets of the stated value of $267,000, which in-

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eluded securities and receivables in excess of $100,000, real estate $115,000, furniture and personal effects $25,000, and an art collection of $10,000, and it stated defendant’s net cash income to be $40,800 per year. Defendant took title to a residential lot on Rising Glen Road and using $30,000 of his own funds, constructed a house on it, purchased an adjoining lot and sold the entire property, with furniture included, for $150,000. He purchased, the house in which he was residing for $90,000. Of this amount his mother-in-law contributed $20,000. Upon this property he had financed and was constructing a second residence at a cost of about $100,-000. He testified that his net income, after deducting $5,000 payable annually to plaintiff, was $16,000. He could not state approximately his gross income for the year 1961. He has two children by his second wife and his monthly expenses and payments were $2,055.