MacHado v. MacHado

California Court of Appeal Mar 9, 1962 No. Civ. No. 62Published

Before: Brown

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Holding. The court held that the trial court did not abuse its discretion in awarding alimony, child support, and attorneys' fees pending appeal, as these matters are within the sound discretion of the trial court based on the parties' financial circumstances and the merits of the appeal.

Issues

Whether the trial court abused its discretion in awarding alimony and child support pending appeal.
Whether the trial court abused its discretion in awarding attorneys' fees and costs for the appeal.
Whether the trial court erred in determining the wife's good faith in pursuing an appeal.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The matter of granting alimony pending the appeal and support of the children is within the sole discretion of the court and there is no reason for us to dispute the court's ruling.”

“There is no proof of any abuse of the court's discretion in this matter.”

“The order is affirmed.”

201 Cal.App.2d 154 (1962) MARY HELEN MACHADO, Plaintiff and Respondent,

JOHN R. MACHADO, Defendant and Appellant.

Civ. No. 62. California Court of Appeals. Fifth Dist.

Mar. 9, 1962. Natalie J. Holly for Defendant and Appellant.

Kane & Canelo and Thomas J. Kane, Jr., for Plaintiff and Respondent.

BROWN, J.

This is an appeal by defendant from a separate order made after entry of the interlocutory judgment [155] of divorce, which is the subject of cross-appeals in this action this day decided (Machado v. Machado, [fn. *](Cal.App.) 20 Cal.Rptr. 152) granting plaintiff alimony and child support, pending determination of the cross-appeals, and attorneys' fees and costs on appeal.

On July 26, 1960, the Superior Court of Merced County made and entered its interlocutory decree of divorce. Limited appeals were filed by both parties.

On October 11, 1960, after proceedings duly had and taken, the court entered its order requiring defendant to pay to plaintiff the sum of $75 per month for the support of each of two minor children, the sum of $150 per month alimony; $1,000 attorneys' fees for services rendered and to be rendered on the cross-appeals, and actual costs on appeal.

From this order defendant appeals, and states four grounds: (1) that he is financially unable to pay the support, attorneys' fees and costs; (2) that plaintiff failed to establish her present need for support for herself and the two minor children; (3) plaintiff failed to show that she appealed from the interlocutory decree in good faith; and (4) the award of attorneys' fees and costs was unwarranted.

With regard to defendant's claim that he is not financially able to pay the support or attorneys' fees and costs, defendant testified at the trial that he had only $65 in the bank; that he owed certain real estate taxes in the approximate sum of $3,211; and that he had not made any profit during the period from January 1, 1960, to August 31, 1960.

It is admitted that the defendant's alleged separate property is appraised in excess of $127,611; that he previously gave $42,000 of his own money to his sister; that he withdrew from a savings and loan account $8,500 belonging to himself and his wife; that he was saving $7,200 in the event that he had to pay her that sum awarded in the interlocutory decree; and that all the personal property, cows, and farm equipment were clear. At the same time, he testified that he was losing money, submitting a financial statement at the hearing on the order to show cause, which financial statement shows that during the period of time from January 1, 1960, to August 31, 1960, his total receipts were $11,014.49, and that he had disbursed a total of $27,204.96. This leaves excess disbursements of $16,190.47. There is no explanation as to where he got this

MacHado v. MacHado

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BROWN, J.

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