Kemppainen v. Hester

FOX, J.

Defendant appeals from a judgment awarding plaintiff $60 per month for his support and maintenance until he attains his majority or until further order of court.

[473]

Plaintiff was born on January 29, 1951. He is the illegitimate child of defendant. The testimony of the child’s mother shows that $100 per month is required for the child’s care. Approximately three-fourths of this amount is paid to a woman who takes care of the child five or six days a week so that the mother can carry on full-time employment.

Under section 196a, Civil Code, the father as well as the mother of an illegitimate child must give him support. In making such an award the court, in the exercise of a sound discretion, must be guided by the financial ability of the defendant to pay, and the needs of the child.

(Berry

v.

Chaplin,

74 Cal.App.2d 669, 672 [169 P.2d 453].)

Defendant earns an average of $427 per month as a door-to-door salesman. He married in December, 1951, and is supporting his wife and her child. He is paying, under court order, $50 per month for support of another child by a former marriage, and insurance premiums on policies for the benefit of this child amounting to $7.50 or $8.00 a month. Defendant’s car payments are $67.50 and the expense of operating it $50 per month. He also owes a bank $500 on which he is making monthly payments of $40. After deducting rent, the cost of food and clothing, utilities, insurance, and income-tax payments, defendant claims his monthly expenses exceed his income by approximately $47.50.

Defendant contends the court abused its discretion in requiring him to pay $60 per month for plaintiff’s support because the evidence fails to show his financial ability to make such payments. In fact, defendant seeks to avoid making any contribution to plaintiff’s support on the theory that his expenses are greater than his income. In his calculations, however, defendant gives himself an undue advantage. In figuring his monthly net income after taxes defendant takes $5,000 as his annual income and only a married man’s income tax exemption. The first discrepancy is that $427 per month produces $5,124 on an annual basis. Thus there is an additional $10 per month income over defendant’s figures. Since defendant is supporting his wife’s child he is entitled to claim it as an income-tax exemption. If the payment he is making for the support of his 5-year-old child by his former marriage, amounts to more than half of its maintenance he is entitled to also claim an exemption for it. His $600 annual cost of operating his car is a business expense and deductible. Interest on his bank loan and on the balance due on his car are of course deductible items as is a standard percentage for