Burns v. Burns

[715]

DRAPER, J.

In this divorce action, plaintiff husband’s complaint alleged that $200 per month “is a reasonable and necessary sum to be awarded to defendant for the support and maintenance” of the two children of the marriage. Upon the wife’s default, interlocutory decree was entered granting divorce to husband, awarding custody of the children to wife, and directing husband to pay $200 per month for their support. No alimony award was made. Final decree incorporating the same support provision was entered as of August 19, 1959. In November, husband procured an order directing wife to show cause why the child support payments should not be reduced to $100 per month. After hearing, reduction was denied. Husband appeals.

The evidence showed that both husband and wife had remarried. Husband’s earnings remained precisely as they had been at date of interlocutory decree. Wife testified that her expenses for the children amounted to $205 per month. She admitted that for the year between interlocutory decree and her remarriage her only income had been the child support payments.

Husband contends that the trial court erroneously ruled that it had no power to consider the remarriages of the parties as a change of circumstances. The record does not support him. The court did insist that change of circumstances must be shown to warrant modification. The decisions are in accord with this view

(Bratnober

v.

Bratnober,

48 Cal.2d 259, 261-2 [309 P.2d 441];

Snyder

v.

Snyder,

219 Cal. 80 [25 P.2d 403] ;

Evans

v.

Evans,

185 Cal.App.2d 566, 570 [8 Cal.Rptr. 412]).

As to the husband’s remarriage, the trial court took the view that “his children take precedence” over the claimed “expense of his present wife.” At the least, this approach is within the court’s discretion