Burman v. Burman

RICHARDS, J. pro tem.* Plaintiff-wife appeals from an order awarding her pendente lite $150 a month alimony, $150 a month child support, $1,000 attorney’s fees and $250 court costs, and also from the order denying her exceptions to the commissioner’s findings upon which the aforesaid order was based.

The appellant’s principal contention is that the evidence established her needs and the defendant’s ability to pay in excess of $300 per month for the support of herself and their 13-month-old child pending the trial of the action. The general principles which govern the propriety of an award of temporary support in an action for divorce are well established. The amount of an order of alimony and child support pendente lite is dependent upon the needs of the wife and the ability of the husband to pay (Sweeley v. Sweeley, 28 Cal.2d 389, 390 [170 P.2d 469]; Arnold v. Arnold, 215 Cal. 613, 615 [12 P.2d 435]) and in determining the amount of an award there must be taken into consideration the circumstances of the parties, their respective incomes and earning abilities and their respective needs. (Sweeley v. Sw&eley, supra; Falk v. Falk, 48 Cal.App.2d 780, 788 [120 P.2d 724]; Howton v. Howton, 51 Cal.App.2d 323, 325 [124 P.2d 837] .)

Appellant, the minor child and a nurse live in the family home of the parties. She is unemployed and suffers mildly from arthritis. Her affidavit which was filed in support of the issuance of the order to show cause was received in evidence and lists her necessary expenses for herself and the minor child in the total sum of $838 a month. Included in her list of necessary expenses is an item of $75 a month for rent. She testified that this was for payment of taxes on the home but admitted she had paid no taxes and there is no evidence in the record that she will be obliged to pay any taxes on the home pending the trial of the action. Another [257]item listed by appellant is $268 a month for laundry and help but from the evidence it appears that the cost of a nurse or housekeeper is being paid for by appellant’s parents. The other monthly expenses listed in her affidavit were food $200; clothes $100; transportation $60; doctor and dentist $25; utilities $60 and incidentals $50. Aside from her testimony of the monthly amounts given to her by defendant for household expenses before their separation, plaintiff was not able to substantiate any of these items by proof of actual outlays. The transportation item included a weekly drive to Palm Springs; she was unable to state how often she required medical attention and the defendant testified she had not had any medical treatment for her arthritis. We think that it is well understood that the expenses listed in the wife’s questionnaire in domestic relations proceedings are merely her estimate of her reasonable monthly needs.