Tillman v. Tillman

California Court of Appeal Oct 17, 1955 No. Civ. No. 20735Published

Before: Parker, Wood

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Holding. The court held that the trial judge did not abuse its discretion in denying a modification of alimony, as the determination of the defendant's financial ability to pay—including the consideration of his tax liabilities, voluntary support of a parent, and incidental expenses—presented questions of fact for the trial court.

Issues

Whether the trial court abused its discretion in denying an increase in alimony payments.
Whether the trial court properly considered the defendant's tax indebtedness, voluntary support payments, and incidental expenses in determining his financial ability to pay additional support.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The income tax indebtedness of defendant was a proper item to be considered upon plaintiff’s application for alimony.”

“Questions of fact before the trial court were whether the plaintiff needed more alimony, and whether the defendant had the present ability to pay more.”

“Under the record here it does not appear that the trial judge abused his discretion in not awarding additional alimony.”

WOOD (Parker), J. Upon application of plaintiff, an order was issued requiring defendant to show cause why an interlocutory judgment of divorce should not he modified by increasing the awards therein for support of plaintiff and a minor child. After hearings thereon, orders were made which were, in part, as follows: (1) increasing the award for support of the child, Susan, from $100 a month to $125 a month; and (2) directing that the defendant pay for surgery to be performed on plaintiff an amount not to exceed $650. Plaintiff appeals from the portions of said last mentioned orders “which failed to grant or which deny a modification” of the interlocutory judgment “on plaintiff’s application” for the increase of the awards for support.

Appellant contends that it was an abuse of discretion to deny an increase of the amount awarded, in the interlocutory judgment, for her support.

[292]An interlocutory judgment, which was entered on October 28, 1952, provided that, pursuant to a property settlement agreement, the defendant was ordered to pay to plaintiff the following amounts: $200 a month for her support; $50 a month for support of their minor child Sydney; and $50 a month for support of their minor child Susan for one year, and thereafter to pay $100 a month for Susan.

The order to show cause herein, regarding the modification, was filed May 17, 1954. In plaintiff’s affidavit in support of her application for a modification of the interlocutory judgment she stated that her expenses have increased; she had to purchase an automobile; she requires surgery; she underestimated her “original” expenditures. In her affidavit she stated amounts that she needed for various things, making a total of $564.78 a month. She testified that the $1,800 which she had in a bank at the time of the divorce had been spent; her automobile was worn out, and she needed an automobile for use in taking her daughter to school and for marketing; she needed $35 a month for a gardener to take care of the joint tenancy property in which she was residing; house repairs and taxes averaged $40 a month; when she agreed to accept $200 a month, she overlooked the necessity of paying income taxes on that amount, and that her income taxes averaged $40 a month. She also testified that she was not able physically to continue her employment; and that in 1953 she earned $1,450 (part-time employment). Her statement of earnings (Exhibit 1) shows that during the first five months in 1954 (prior to discontinuing her employment) she earned a gross amount of $495.16; and that the net amount (after deducting amounts withheld for income taxes, unemployment insurance, and social security tax) was $391.21.

Tillman v. Tillman

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