Meagher v. Meagher

TOBRINER, J.

Appellant husband appeals from a superior court order directing him to pay to respondent wife and the minor children of the parties approximately $750 per month as temporary alimony and support. He charges that the court “abused its discretion” in ordering him to pay more per month “than the evidence showed he was earning.” We believe that for the reasons discussed

infra

the trial court’s order constituted a proper exercise of its discretion.

[63]

We set forth the facts briefly.

Appellant left respondent and their home in Oakland, California, on August 25, 1959. As of that date, appellant earned $2,083 per month as vice president of sales of Independent Iron Works, Inc., a family-owned corporation in which he held 410 shares of stock. From November 1957, to September 1959, he had been paid that amount. For the month of September, however, he received $750. On September 30, 1959, he terminated his employment with the Independent Iron Works and went to work for $624.05 per month as a salesman for Frees and Sons, a Kentucky firm in the process of purchase either by Independent Iron Works or appellant’s family. Respondent filed a complaint for divorce in Alameda County on October 15, 1959. Thereafter, on December 9, 1959, appellant obtained a default divorce in Nevada.

Respondent applied for attorneys’ fees, court costs, alimony pendente lite, allowance for support, and custody of the three minor children, showing that to maintain herself and the children she required approximately $900 per month. The court awarded her $300 per month alimony, $100 per month for support of each of the three children, $750 attorneys’ fees, $250 for costs, and approximately $150 per month from rent on a gasoline station owned by the parties. The order provided that appellant pay all existing obligations and taxes on the residence. The court further enjoined other designated defendant officers and owners of the Independent Iron Works from altering in any way the interests of appellant, respondent, or their children in the corporation. These defendants have not appealed from that order.

Since the husband does not question the need of the wife and family for the awarded amount, the sole issue turns upon the husband’s ability to pay that amount.