Arnold v. Arnold

THE COURT.

Appeal by defendant husband from an order granting temporary allowance during the pendency of an action for separate maintenance and support and awarding costs and attorney’s fees.

[614]

After setting forth the necessary jurisdictional fact of residence the complaint alleges that the appellant has refused to live with respondent and for more than a year last past has failed, neglected and refused to support her. The parties were married in the state of New York in 1917, and appellant is alleged to have deserted respondent in 1918. No community property is involved and there is no issue of-the marriage. The order appealed from was made and entered in response to an order, issued upon the verified complaint and affidavit of respondent, directing appellant to show cause why a temporary allowance should not be granted to the respondent. The defendant had already appeared and filed an answer. The order to show cause was heard on the complaint and said answer, the affidavit of respondent, and the oral testimony of the appellant. At the conclusion of the hearing the lower court made its order directing the appellant to pay to the respondent $75 forthwith, and $75 a month thereafter for her support until the further order of court, together with $50 for costs and $100 for attorneys’ fees. At the request of the respondent the appeal was submitted on the appellant’s brief alone.

In support of a reversal the appellant advances but two points, viz.: That the complaint does not state facts sufficient to constitute a cause of action and that the order based thereon is therefore of no effect; and that the trial court prejudicially erred in rejecting evidence offered by the appellant to show lack of financial ability to comply with the court’s order and the ability of the respondent to maintain herself independently of appellant.

We find merit in the appellant’s second contention. Section 137 of the Civil Code provides that during the pendency of an action for permanent support and maintenance the court “may, in its discretion, require the husband ... to pay as alimony any money necessary for the prosecution of the action and for support and maintenance. . . . ” The court under its power might have made an

ex parte