Foster v. Foster

• Decision Date: 31 December 1956
• Citation: 147 Cal.App.2d 338,305 P.2d 152
• Court: California Court of Appeals
• Parties: Anne Vivian FOSTER, Plaintiff and Respondent, v. Glen Varick FOSTER, Defendant and Appellant. Civ. 22018.

Page 152

305 P.2d 152

147 Cal.App.2d 338

Anne Vivian FOSTER, Plaintiff and Respondent, v.Glen Varick FOSTER, Defendant and Appellant.

Civ. 22018.

District Court of Appeal, Second District, Division 1, California.

Dec. 31, 1956.

Price, Postel & Parma, Santa Barbara, Frederick W. Mahl, Jr., Los Angeles, for appellant.

Walter H. Young, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from an order wherein the court ordered the appellant to pay to the respondent's new counsel, on account of attorney's fees, the sum of $1,000, and further, to pay to the respondent, in addition to the sum of $400 per month previously ordered, the sum of $75 per month.

The facts of the case, as disclosed by the files and records, are substantially as follows: The parties hereto were each previously married to and divorced from another spouse at least once.The respondent, hereinafter referred to as the wife, had, prior to her marriage to the appellant, hereinafter referred to as the husband, lived in California sometimes with and sometimes separated from her then husband.The husband herein was, at the time of his marriage to the wife herein, divorced from another wife and was paying her alimony in the sum of $250 per month plus $300 per month for the support and maintenance of two minor children of that marriage.The parties here were married in Las Vegas, Nevada, on or about June 20, 1953, and separated about April 8, 1955.Apparently the marriage took place on the day of the divorce of the wife herein from a previous husband.

The wife brought this action wherein she alleged extreme cruelty and seeks a judgment for separate support and maintenance.The husband's answer denies the existence of the marriage relationship and the alleged acts of extreme cruelty.He also filed a cross-complaint for annulment, and in the alternative, for a divorce.

An order to show cause with reference to alimony, attorney's fees and costs was secured by the wife and returned and heard before Judge Mosk in Department B, Santa Monica, on June 3, 1955.After a full and complete hearing on that date the judge ordered the husband to pay to the wife the sum of $400 a month for support and maintenance, plus the sum of $250 on account of costs and the sum of $1,500 on account of the wife's attorney's fees, and pursuant to stipulation between counsel for the parties, the balance of attorney's fees, if any, was to be set at the time of trial.The amounts so ordered were all paid by the husband.

Thereafter the wife secured an order to show cause with reference to a modification of the order of June 3, 1955, based upon her affidavit that she required over $800 per month for her support and maintenance, additional fees for her new attorney, and additional sums for costs.This order with reference to a modification of the original order was heard on April 13, 1956, in the superior court, Santa Monica, Department C, before Judge Odemar, and at the conclusion of the hearing the judge ordered that the husband pay additional attorney's fees, on account, in the sum of $1,000, and the sum of $475 for a thirteen month period for the wife's support and maintenance.This appeal is from the order of April 13, 1956.

The record seems to indicate that the complaint for separate support and maintenance was filed on the 25th day of May, 1955.The first order to show cause was heard and disposed of on June 3, 1955.Sixty-four days elapsed from the date of the filing of the original complaint to the date of the husband's first appearance by demurrer.The hearing on the demurrer was continued on the day it was set to be heard.A first amended complaint was filed by the wife on August 26, 1955.Sixty-eight days later an answer and cross-complaint was filed by the husband.At the date of the hearing of the petition to modify the previous order of June 3, 1955, no answer to the cross-complaint had been filed, although some 162 days had passed.An answer to the cross-complaint was ultimately filed on June 26, 1956.The case is now at issue and set for pre-trial hearing on April 18, 1957.

The husband contends that the wife failed to sustain the burden of showing a change of circumstances since the making of the original order.The evidence did show, however, that she was now apparently being attended by a psychiatrist and another doctor.She was apparently being attended by the psychiatrist for what she said was being 'emotionally upset', and by the second doctor for what she stated the doctor said was a 'near ulcer'.She further testified that she now drove her automobile 25,000 miles per year, or over 2,000 miles per month.Further, in an affidavit, she set forth that she once was employed by I. Magnin for two or three months in 1950 for $165 per month, that she hasn't worked since, and does not expect to work in the future.She also stated that she required $30 per month for beauty treatments and care.

At the original hearing the wife stated that she had lived in California up to a period of...