Brawman v. Brawman

• Decision Date: 05 February 1962
• Citation: 199 Cal.App.2d 876,19 Cal.Rptr. 106
• Parties: Mark W. BRAWMAN, Plaintiff, Cross-Defendant and Respondent, v. Bertha BRAWMAN, Defendant, Cross-Complainant and Appellant. Civ. 10239.
• Court: California Court of Appeals Court of Appeals

Page 106

19 Cal.Rptr. 106

199 Cal.App.2d 876

Mark W. BRAWMAN, Plaintiff, Cross-Defendant and Respondent, v. Bertha BRAWMAN, Defendant, Cross-Complainant and Appellant.

Civ. 10239.

District Court of Appeal, Third District, California.

Feb. 5, 1962.

Rehearing Denied March 1, 1962.

Hearing Denied April 3, 1962.

Hilary H. Crawford and Hilary H. Crawford, Jr., San Francisco, for defendant, cross-complainant and appellant.

Ira M. Shadwell, Redding, and Mark M. Brawman, Yreka, for plaintiff, cross-defendant and respondent.

PIERCE, Justice.

This is an appeal from that portion of an interlocutory decree of divorce which denied appellant wefe alimony, although granting her a divorce on the ground of extreme cruelty on her cross-complaint.

At the time of the decree the parties had been married 21 years. Respondent husband was then 53 years old. Although appellant's age was not stated, we would deduce from the testimony and duration of the marriage that she is, at least, in her middle forties. The couple have two daughters who, at the time of the trial, in November 1960, were 19 and 16 years of age, and they have a son, 7.

Respondent husband is a lawyer, had been in practice for one year when the couple were married. All their property was community. Accepting respondent's valuations, the property substantially exceeds $100,000, in value. This does not include the law practice accounts receivable or good will, on which no valuation was placed by the court in dividing the property.

Respondent during the 22 years has built up a lucrative law practice. In the four years next preceding the trial he had averaged a net of $24,172 before taxes. In addition, an apartment house (awarded to respondent under the decree) brings in a substantial net income. What this was connot be determined accurately from the record, because respondent in an informal declaration of income and expenses from this source had improperly included 'capital repairs' as 'ordinary expense.' (See Int.Rev.Code, sec. 263(a), 26 U.S.C.A. § 263(a), Reg. 1, 263a-1; 26 U.S.C.A. § 162, n. 69). In 1958 the net income from the apartments was $2,522; in 1959, $2,744. It is fair to assume that respondent's net income average well over $26,000 a year.

Respondent valued the apartment and law office real property at $36,000. A vendor's lien under a ranch contract of sale was worth $18,000, the balance due being evidenced by a note. The home was valued at from $20,000 to $25,000 and the household furniture at $4,000 to $5,000. Law office furniture and equipment was valued by respondent at $3,500; two automobiles at $2,774 and $980, respectively. $8,000 in the bank at the outset of the divorce had been spent by the husband, for a new automobile for himself, for capital expenditures on the apartments, and $1,114.47 was spent on the house. Other property--five Yreka lots, an interest in a Lake County lot, and a bond--had minimal value.

There was various life insurance policies, mostly 'term;' those with a cash value aggregated $5,000.

This community property, by the decree, was divided as follows: The husband was awarded the law office and apartments, the law library, furniture and equipment, the interest in the Lake County lot, two life insurance policies with benefits of $20,000, another with benefits of $5,600. On none of these policies was respondent required to maintain appellant as beneficiary. (He could either cancel them or change beneficiary, or, if required to maintain them, it was for the benefit of the children, not the wife.) The only policies assigned to appellant were two, aggregating $5,000. On these, respondent was required to pay the premiums. The wife was also assigned a policy without cash value, if she desired, or was able, to keep up its premiums herself. The net result: Appellant has $5,000 of protection by insurance on respondent's life.

Respondent, ipso facto, also received the community law practice. The decree is silent regarding this.

Appellant was awarded the home and its furniture, the automobile she was driving, the contract of sale and promissory note on the ranch and the Yreka lots. And respondent was also required to pay her $10,000, bearing 6 per cent interest, at the rate of $1,000 per year.

The comparison of values, accepting the figures testified to by respondent and his witnesses, shows that respondent received property worth $50,315, plus the law practice with its accounts receivable (not counted) and appellant received property valued by respondent at $68,743.16, plus the husband's obligation to pay her $10,000.

Custody of the oldest child, who was in college, was awarded to respondent. (She is now nearly 21.) Custody of the two younger children was awarded to appellant. Respondent was directed to pay appellant $200 per month each for the support of these two children.

The court's findings are that respondent's alleged grounds for divorce, extreme cruelty, are untrue and that appellant's allegations in her cross-complaint are true. The decree awards appellant the divorce upon the grounds of cruelty. ¹

The decree denied appellant alimony. This, as stated above, is the basis of the appeal.

Civil Code, section 139 provides inter alia:

'In any interlocutory of final decree of divorce * * * the court may compel the party against whom the decree or judgment is granted to make such suitable allowance for support and maintenance of the other party for his or her life, or for such shorter period as the court may deem just, having regard for the circumstances of the respective parties * * *.'

This vests a broad discretion in the trial court. (See West's Ann.Civil Code, sec. 139, notes 10, 14, 41, 67 and cases cited and digested thereunder.) Where discretion has been abused, however, appellate courts have reversed the lower court's holding, whether the abuse consisted of an excessive award (as was found in Hall v. Hall, 42 Cal.2d 435, 442, 267 P.2d 249) or no award at all (as in Webber v. Webber, 33 Cal.2d 153, 199 P.2d 934; Arnold v. Arnold, 76 Cal.App.2d 877, 174 P.2d 674). The reason for the rule has been expressed to be: That the Legislature has admonished the trial court to make a 'suitable allowance.'

The discretion of the trial court 'is not arbitrary * * * 'it must be exercised along legal lines, taking into consideration the circumstances of the parties, their necessities and the financial ability of the husband. * * * In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason,--all the circumstances before it being considered.''

In Webber v. Webber, supra, the parties had been married for 36 years, the 53 year-old wife was in fairly good health, but of a nervous disposition, and had not worked outside the home. The husband was a laborer, earning $40 to $47 per week. The trial court at the outset had announced he did not intend to make any alimony award and he did not do so in the decree. It was held, on appeal, that the wife had not had a fair trial; that the court, under Civil Code, section 139 was obligated to make a suitable allowance to the wife for her support "having regard to the circumstances of the parties respectively."

The Supreme Court, studying the record, noted a predisposition in the trial court against the allowance of alimony, frankly asserted at the outset of the trial, and found that this was in contravention of the clear declaration of the Legislature and policy of the law. The court says on pages 157-158 of 33 Cal.2d on page on page 937 of 199 P.2d (quoting from Arnold v. Arnold, 76 Cal.App.2d 877, 174 P.2d 674):

"* * * The theory of this requirement is that the husband entered upon an obligation which bound him to support his wife during the period of their joint lives, that by his own wrong he had forced her to sever the relation which enabled her to compel the performance of this duty, and that he is required to make compensation for the offense committed by him which has deprived her of the benefit of the obligation."

This rule collides head-on with the rule applied here by the trial judge as expressed by him in his oral opinion delivered from the bench at the conclusion of the trial:

'* * * [B]y and large the support of a wife is a consideration which the husband pays in exchange for the affection of the wife as a marital partner, and her services as mistress of his home. If that service is not to be rendered, this court, at least, does not believe it should be paid for. Therefore, in this case, I am not very favorably disposed toward the granting of alimony and any financial arrangement [which] has that effect, whether or not it have that form, will be chiefly compensation to the wife for her services she will still be rendering; namely, that of taking care of the children.' (Emphasis added.)

Later, in response to the argument by the wife's attorney that she was entitled to alimony, the court replied: 'Can you give me any reason why the wife should get paid for what she is not doing?' And still later the court observed: 'You are probably aware of the fact that these days alimony is increasingly less common, that the award of alimony has been highly criticised throughout the state, and as the employment of...