Trembath v. Trembath

O’DONNELL, J. pro tem.* On March 28,1951, respondent was granted an interlocutory decree of divorce from appellant. By the terms of the decree respondent was awarded the dwelling and household furnishings of the parties. Appellant was awarded the sum of $2,000 in lieu of his community interest in those properties and also was awarded the family automobile. A bank account of $2,200 was divided equally between the parties. The decree further directed appellant to pay respondent the sum of $1.00 per month as support money until further order of court.

By an order dated April 11, 1952, the lower court, on respondent’s application, modified the interlocutory decree by directing appellant to pay respondent $90 per month for her support. Appellant has appealed from that order. On May 27, 1952, on respondent’s application the lower court ordered appellant to pay respondent’s attorney $250 for fees and costs to enable respondent to resist the appeal from the order of April 11, 1952. Appellant has also appealed from the order of May 27,1952. The two appeals are now before us.

Appellant first contends that the trial court abused its discretion in increasing the amount of respondent’s support money from $1.00 per month to $90 per month. He urges that there is no evidence of such a change in the circumstances of the parties as would justify the order. In fact, says appellant, the evidence discloses that his condition, both physical and financial, is poorer than it was at the time of the trial in March, 1951.

Appellant is a licensed beauty operator. He is employed in a beauty shop where he receives, as compensation for his services, 50 per cent of the fees paid by the customers on whom he works. He testified that he has a heart condition which prevents his being much on his feet and that he has [267]not worked since January, 1952. He further testified that he had no money nor property, nor income. In 1951 his income was $2,034.49.

However, the evidence also developed the following significant facts: Appellant and one Josephine Fletcher had formerly operated this same beauty shop as partners. In 1948 appellant became financially involved and he transferred his interest in the shop to his brother-in-law. The latter then transferred it to Josephine Fletcher. She has been operating it since that time. Appellant and Josephine Fletcher have been living together. Appellant has access to her safe deposit box. A Mrs. Warren, a private investigator employed by respondent, visited the beauty shop on February 15, 1952. She found appellant there and made an appointment with him for a permanent wave. This was on a Friday. Mrs. Warren saw appellant’s appointment book. There were a number of appointments in it. Appellant could not give her an appointment until the following Tuesday. Again on February 26, 1952, Mrs. Warren found appellant seated at a desk in the beauty shop “apparently taking care of the appointment book.”