Hilmer v. Superior Court of S.F.

WASTE, C. J.

It appears that petitioner procured a final decree of divorce from her husband, Marshall Hilmer, on August 10, 1932. The custody of the minor child of the parties was awarded to her, and the father of the child was directed to pay $50 a month for the child’s support. Contempt proceedings have been necessary from time to time to compel payment of this award. In March, 1933, petitioner moved the respondent court for an increase of the support allowance and for an order compelling the defendant husband to furnish security for its prompt and continued payment. This motion was based on sections 139 and 140 of the Civil Code. In support thereof petitioner filed an affidavit wherein it is averred that the defendant husband repeatedly has been delinquent in making the monthly support payments; that recently and by reason of his father’s demise he had come into an inheritance, not yet distributed, of approximately $12,000; that he is intemperate and incapable of handling money judiciously, and is neither a fit nor proper person to be entrusted with the monthly allowance of the minor child.

After hearing, the motion was denied, whereupon petitioner instituted this proceeding in

mandamus

to compel the respondent court to make an order requiring and directing that security be furnished for the future and continued payment of the monthly installments of support money. There

[73]

have been filed herein many briefs, affidavits and counter-affidavits raising many sharply controverted issues of fact which, because of the conclusion we have reached, we find it unnecessary to consider or determine.

The provisions of section 140,

supra,

relating to security for alimony or support awards are permissive and not mandatory and it is within the discretion of the trial court to require or not to require such security.

(Latterner

v.

Latterner,

121 Cal. App. 298, 302 [8 Pac. (2d) 870].) It is well settled that