Spurgeon v. Spurgeon

BRAY, J. The trial court denied cross-motions (1) by the plaintiff to modify a decree of divorce granted December 15, 1953, by eliminating therefrom the requirement that he pay defendant $50 per month alimony, and by transferring the physical custody of the two minor children of the parties to him (the legal custody is in both parties), and (2) by defendant to modify the decree to increase the support of each child from $55 to $75 per month and to obtain attorney’s fees and costs. Defendant appeals.

Questions Presented

1. Was defendant denied due process of law?

.2. Did the court abuse its discretion in denying (a) the increase in support, (b) attorney’s fees and costs?

1. Due Process.

There is no merit to this contention. The hearing of both motions began by the court suggesting that plaintiff’s motion be heard first. (It was filed first.) Defendant made no objection. Plaintiff without objection examined defendant as to her income and living situation. Defendant’s counsel then examined her on the same subject. Plaintiff was then examined in his own behalf and cross-examined by defendant. A couple of times during this cross-examination the court stated that it appeared from the testimony of the parties that plaintiff was not in a position to pay more money for the support of the children. In each instance, however, the court said his statement was without prejudice to further examination of plaintiff by defendant or the introduction of further evidence. Defendant did further examine plaintiff. When the cross-examination of plaintiff by defendant was concluded, the court stated it was prepared to rule. Both parties testified as to .their respective financial situations. The court said, “. . . we have got the picture, I think, don’t you think so?” “Now, the wife, as I understand it, the wife has a motion here to increase ? ’ ’ All defendant said was that she would like to further cross-examine plaintiff. She did so. Plaintiff submitted the matter. Defendant said nothing. The court then ruled. Defendant did not object to the fact of ruling, nor offer any further evidence, nor request the opportunity to present more evidence or even to argue the matter. The statement in defendant’s brief that she was deprived of the right to produce evidence in support of her motion is not borne out by the record. Apparently defendant contends that the court should have ruled first on plaintiff’s motion [35]