Friedman v. Friedman

SHINN, P. J. This appeal is from an order made March 7, 1962, reducing, on defendant’s application, the amount of alimony awarded plaintiff in an interlocutory decree of divorce from $1,000 to $800 a month.

The record discloses that on May 20, 1960, an interlocutory decree of divorce was granted in favor of plaintiff in which she was awarded alimony in the sum of $1,000 a month during the lifetime of defendant and until plaintiff should remarry or die or until otherwise ordered by a court of competent jurisdiction. This amount had been agreed upon in a property settlement agreement which was approved by the court. On January 9, 1962, defendant served upon plaintiff an order to show cause why the amount of alimony awarded her should not be reduced to the sum of $500 per month. Thereafter, plaintiff served upon defendant an order to show cause why the amount of alimony awarded her should not be increased to $1,250 per month. Near the end of the hearing on the matter the trial court declared to plaintiff’s counsel as follows: “THE COURT: Mr. Pacht, this evidence manifestly demonstrates the doctor’s ability to meet whatever necessary the wife shows exists. MR. PACHT: All right. THE COURT: So to prove that he has perhaps substantially greater assets than has been heretofore presented will not go to our problem. MR. PACHT: Very well, your Honor. I am through then. ... THE COURT: Here is what the court’s present impression is, and this will be the order unless you change my mind by argument. I had in mind reducing the monthly payment to $800 per month and requiring the Doctor to pay such fees as are necessary for the wife’s appearing in this action. I concluded, and this is where it may lengthen the case—I concluded such an order as follows, or find such an order indicated for the following reasons: The wife’s evidence does not show a necessity for her alleged $1,200 per month, and would not show that even though she were per[219]mitted reasonable travel expenses. The $800 a month would permit it when you consider her income from her separate property, remembering that the husband is not required to pay for upkeep on her separate property as evidenced by the taxes on this apparently unimproved lot. Furthermore, the wife is here by court order reasonably secure as to the future, the maintenance of this amount o [r] its equivalent by way of insurance. ’ ’

After the hearing the trial court modified its previous order as indicated above to be effective from and after April 1,1962.

Plaintiff urges that the trial court erred in reducing the amount of alimony awarded her in the interlocutory decree. The factual basis for defendant’s application was the asserted increase in his expenses. The ground of plaintiff’s appeal is, of course, a claim that the order appealed from amounted to an abuse of the court’s judicial discretion. Upon the evidence presented to us in the record we must agree.