Bird v. Bird

FOX, P. J. Plaintiff appeals from an order of February 10, 1959, which reduced the amount that the defendant was required to pay for the support of the minor children of the parties to $125 per month for each child.

An interlocutory decree of divorce was entered in plaintiff’s favor on December 9, 1955. By the provisions of that decree, the defendant was awarded custody of the two minor children subject to plaintiff’s having them during summer vacations and Christmas and Easter holidays. Defendant was ordered to pay to plaintiff during such periods the sum of $200 per month for each child for their maintenance and care. These provisions for the custody and maintenance of the children were made notwithstanding a written agreement between the parties that the wife should have the custody of the children. The agreement also provided that the husband would pay $200 monthly for the support of each child. Although plaintiff appealed, she only appealed from that portion of the judgment which denied her alimony. This court affirmed the judgment in Bird v. Bird, 152 Cal.App.2d 99 [312 P.2d 773].

[190]In October, 1956, an order was made modifying the judgment and providing that custody of the two minor children be given to plaintiff except that the defendant would have the children with him in Oklahoma, where he lived, during the Christmas and Easter holidays and summer vacations. At that time the support payments were reduced to $150 per month for each child during the time they were with the mother. • In December, 1958, a court commissioner recommended that these support payments for the children be increased to $200 per month each. The defendant took exception to this increase. His objections were denied.

In January, 1959, the defendant filed a motion to rehear his exceptions to the commissioner’s report and at the same time filed a motion to modify the support order. These came on for hearing on February 9, 1959, at which time the defendant testified briefly and the court continued the hearing until the next day. His testimony on February 9th revealed that he had a salary of $173.80 bimonthly for managing an oil property in Tulsa, Oklahoma; owned a small business property which was running in the red; that he expected to file a tax return in the following April which would show a net loss for 1958; that he was bankrupt; that he was making automobile payments of $114.58 per month; and paid $95 per month for his apartment.

The following day the court consulted with counsel in chambers and then took the bench and made an order modifying the previous orders so as to require defendant to pay $125 for each child monthly and changed the custody provisions by allowing the defendant to have the children with him in Oklahoma during the Christmas and Easter holiday periods in alternate years and allowing the plaintiff to have them for Easter and Christmas of 1959. No further evidence was taken and none was offered by either party. No objections were made to the court’s procedure.