Busch v. Busch

DOOLING, J.,

pro tem.

In an action for divorce, plaintiff and respondent procured an order on March 11, 1927, that defendant and appellant pay her $1,000 per month temporary alimony, $1,000 suit money, $7,500 attorneys’ fees and $3,600, the purpose of this $3,600 payment not being stated in the order. Notice of appeal from this order was filed March 17, 1927. Thereafter on April 21, 1927, respondent secured a further order that appellant pay her $1500 counsel fees and $200 suit money to ’ enable her to resist the appeal from the prior order. From this second order appellant also appeals. The two appeals have been presented together.

Appellant’s claim that these orders were erroneous because it appeared that respondent had sufficient means of her own to enable her to support herself and prosecute the action may be briefly disposed of. Respondent’s property consisted of the home in which she was living with its furnishings, an automobile, personal jewelry and a few shares of stock. The income from the stock was shown to be abont eight dollars per year and none of the other property was income producing. “Where the wife is the owner of non-income-producing property, the law does not require her to have recourse to her own resources first, or to impair the capital of her separate estate.”

(Farrar

v.

Farrar,

45 Cal. App. 584, 586 [188 Pac. 289, 290].)

It is argued that the allowance of $1,000 per month was excessive, first, because it was not necessary to sustain the wife and child in the manner in which they had been accustomed to live and, secondly, because it was in excess of appellant’s reasonable ability to pay. It was shown that while the parties were living together appellant allowed respondent an aggregate of $850 per month for household expenses, clothes and the support of the minor child. • In

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addition appellant paid many expenses of the household himself. We are satisfied that the evidence justified the trial court in its informal finding that these additional expenditures averaged from $450 to $600 per month. This showing was ample to support the implied finding that $1,000 per month would be necessary to support wife and child in their accustomed manner. While appellant testified that their living on this scale had been against his repeated protests there was no showing that during the several years they lived together their scale of living had been at any time reduced. On the second ground it was admitted by appellant that his separate property had a minimum value of $2-78,000 and respondent’s counsel offered to prove that its value was at least $700,000. This offer was objected to by counsel for appellant on the ground that it was in the interest of time to exclude such proof and the proof was not permitted to be made. Appellant produced evidence to show that his income for the particular year would be materially reduced from the income that» he had received in the previous year and that by reason thereof $400 per month would be the maximum amount that he could pay for the support of his wife and child. The court, however, was entitled to take into consideration the previous year’s income and was not bound by appellant’s estimate, necessarily speculative and possibly colored, of his future income; and appellant admitted receiving a salary of $1,000 per month in addition to his income from investments. It is also to be noted that the order was made on March 11th and the divorce suit was set for trial and tried on March 16th, five days later. Under these circumstances and upon the showing made the court was justified in allowing the wife temporary alimony to enable her to maintain her accustomed 'standard of living for the very short period which would intervene before the matter could be fully examined into and determined at the trial.