Merritt v. Merritt

THE COURT.

The question presented by this appeal is whether or not the trial court should have denied a motion to modify a previous order for alimony and support of a minor child in a divorce case. Certain accrued allowances for such purpose were not paid, and the court below further found that the only income of defendant was his monthly salary, which was less than the amount of the monthly allowance, and that he had no other property or assets or credit facilities except the possibility of borrowing from relatives or others.

[86]

We are of the view that the order appealed from should be reversed, with directions to the trial court to accord the parties an opportunity to introduce further evidence, and to enter such order as may then be found just and equitable.

The appeal is by the defendant husband from a special order made after final judgment in a divorce action denying his motion for modification of the allowance for support of plaintiff and the minor child. Interlocutory decree of divorce was entered December 1, 1926, and an order made at that time for payment of $1,000 per month, pursuant to agreement of the parties, which was subsequently increased to $1100 per month by an order from which defendant appealed, and which was affirmed. (See

Merritt

v.

Merritt,

106 Cal. App. 234 [289 Pac. 240].)

Later, upon a showing of decreased income by the defendant, the allowance was reduced to $800 for the period of June, 1928, to January, 1929, with a special proviso inserted by the judge that the modification shall not relieve the defendant from civil liability for nonperformance of the property settlement upon which the previous order was based. In June of 1930 the plaintiff filed an application to have defendant adjudged guilty of contempt for failing to comply with the court’s order for support and maintenance, alleging substantial arrears on account thereof. An order to show cause was duly issued and served, and in response thereto defendant filed affidavits of himself and his employer’s attorney showing his inability to make the monthly payments or to obtain the money to meet the past due and unpaid sum, and also filed notice of a motion for modification of the order for support of plaintiff and minor child by reducing the payment to plaintiff from $750 per month for herself and $350 per month for the child to $300 per month for her maintenance and $200 for the child. Voluminous affidavits were filed in support of and in opposition to the respective motions and by consent of the parties they were heard together in November, 1930, and thereafter the court made an order finding that “defendant’s only income is his salary amounting to $800 per month, and that he has no other property or assets belonging to him or under his control from which he receives any additional income, or which could be converted into cash,