Dean v. Dean

SCHAUER, J. Plaintiff appeals from an order reducing during certain months of the year and for a limited period of time the monthly alimony payments awarded to her under an interlocutory judgment of divorce. As will appear, we have concluded that the evidence supports the implied finding by the trial court of changed conditions warranting the temporary modification, and that the order should be affirmed.

From the record it appears that the parties were married in 1940 and separated in 1956. Two daughters born of the marriage were, at the time the interlocutory judgment was entered in September 1958, of the ages of 14 and 16 years, respectively. Their custody was awarded to plaintiff.

The interlocutory decree also provided for division of the community property. Plaintiff was awarded the home of the parties in San Marino, California (subject to an encumbrance), together with the furniture in that home and a 1953 automobile. Defendant was awarded a summer house at Newport Beach, California (likewise encumbered), as well as the furniture therein, a 1955 automobile, and certain shop and photographic equipment. Defendant was also ordered to name the two minor children as beneficiaries of certain insurance policies and to maintain such policies by paying the premiums thereon until the youngest child reached 21 years of age; the policies had no net cash value above outstanding loans against them at the time of the decree.

Defendant was further ordered to pay to plaintiff the sum of $425 a month for her own support and maintenance, plus support money of $100 a month for each of the minor daughters. In February 1960, by which time the elder daughter, Mary Ann, was enrolled in college, the interlocutory judgment was modified pursuant to stipulation of the parties to provide that “in any year when” Mary Ann “shall be regularly enrolled in a college or university” the $100 a month for her support “shall be paid” directly to her; except during the months of June, July and August of each year, and, further, that defendant “shall . . . pay such additional expenses as may be required for the support of said child while she is away at college,” as well as for certain dental work for Mary Ann.

In September 1961 by order to show cause defendant sought reduction of the alimony payments to plaintiff. Following a [657]hearing the court in November 1961 ordered a modification “in the following respects only. When the minor child, Mary Ann Dean, is attending . . . any . . . college, the defendant is ordered.to pay to plaintiff as alimony the sum of $300 a month ...” (italics added) rather than the $425 originally ordered. This appeal by plaintiff followed.