Zimmerman v. Zimmerman

FOX, P. J. Plaintiff appeals from an order denying her application for an increase in alimony from $1.00 per year to $350 per month. Her only contention is that there has been a change of circumstances which requires modification of the original order, and that the trial court abused its discretion in failing to recognize such change and to modify the order accordingly.

In the interlocutory decree entered on April 20, 1959, it was adjudged that both parties were entitled to a divorce on the ground of “extreme cruelty” under the doctrine of DeBurgh v. DeBurgh, 39 Cal.2d 858 [250 P.2d 598], Consequently, the community assets were divided equally, each party receiving property valued at $55,339.40. The court also ordered the defendant to deliver lease-contracts which he held on certain machinery and equipment to Union Bank & Trust Company to enable it to collect on said leases the amounts due thereon and to deposit the net proceeds in a joint account in the names of plaintiff and defendant, from which account certain enumerated obligations, totaling some $58,000 would be paid, any balance to be divided equally between the parties. Further, defendant was ordered to “liquidate forthwith, for the best price obtainable, ’ ’ certain community businesses, and, after deducting from the proceeds expenses of liquidation, obligations to creditors, and taxes, to divide equally any balance remaining. Plaintiff was awarded token alimony of $1.00 a year.

The final decree of divorce was entered on May 3, 1960.

On April 7, 1960, plaintiff filed an order to show cause, seeking to increase alimony payments from the nominal amount of $1.00 per year to $350 per month. Hearing was held on this application during the following month. The court denied plaintiff any relief. It is from this order that she has appealed.

Plaintiff’s testimony revealed that she still owns the furnished, three-bedroom home which was awarded to her in the interlocutory decree, for which she had refused a cash offer of $40,000, subject, however, to an encumbrance of $17,000; that she had leased this home at a gross rental of $400 a month, from which she received a net return of $143 a month; that she has the jewelry, valued at a little more than $20,000, which was awarded to her; that she has in the bank $3,226 of the $6,389.07 [409]which her husband had paid to her in accordance with the provisions of the interlocutory decree. Plaintiff, who was 53, indicated that she had tried to work since the interlocutory decree but had been unable to hold a job.