Gluckman v. Gaines

• Decision Date: 25 September 1968
• Citation: 71 Cal.Rptr. 795,266 Cal.App.2d 52
• Parties: Moses GLUCKMAN, Plaintiff and Appellant, v. Morton GAINES, Defendant and Respondent. Civ. 11576.
• Court: California Court of Appeals Court of Appeals

Page 795

71 Cal.Rptr. 795

266 Cal.App.2d 52

Moses GLUCKMAN, Plaintiff and Appellant, v. Morton GAINES, Defendant and Respondent.

Civ. 11576.

Court of Appeal, Third District, California.

Sept. 25, 1968.

Martin S. Stolzoff and Morton C. Devor, Beverly Hills, for plaintiff-appellant.

Seymour Berger, Sacramento, for defendant-respondent.

PIERCE, Presiding Justice.

Plaintiff brought an action against defendant for support and maintenance under Civil Code section 206. That section provides that it is the duty of 'the children of any poor person who is unable to maintain himself by work, to maintain such person to the extent of their ability.' The court without a jury determined that plaintiff is the father of defendant, that plaintiff is a poor person, that he is old and infirm; finally it determined that defendant was financially unable to contribute to plaintiff's support. Plaintiff challenges the latter finding. It is the only issue argued on appeal. We hold that substantial evidence supports the trial court's finding. As we view the appeal, however, a combination of factors should be considered to reach the ultimate conclusion. To explain why that is so our discussion will start with an outline of the principles and rules of law governing a case such as this.

At common law there was no legal obligation upon a child to support a needy parent; the duty depends entirely upon statute. (Duffy v. Yordi (1906) 149 Cal. 140, 84 P. 838; Parshall v. Parshall (1922) 56 Cal.App. 553, 205 P. 1083.) California by statute gives to the needy and parent a right of support. (Civ.Code, § 206; Civ.Code, §§ 242, 245, 248.) Plaintiff here purported to sue under Civil Code section 206. It has been stated that the 'main purpose of the statutes seems to be to protect the public from the burden of supporting people who have children able to support them.' (Duffy v. Yordi, supra, 149 Cal. at p. 142, 84 P. at p. 838; Britton v. Steinberg (1962) 208 Cal.App.2d 358, 360, 24 Cal.Rptr. 831.) The limit of liability imposed upon the children by section 206 is to maintain the needy parent 'to the extent of their ability.' That, indeed, would be the extent of liability which substantive due process would constitutionally permit. (See San Bernardino County v. McCall (1942) 56 Cal.App.2d 99, 132 P.2d 65.) A sister state has held that constitutionally the limit of permissible imposition of liability is reached at a point beyond which an exaction of support would deprive the child of the means 'to provide for his own reasonable necessities.' (Mallatt v. Luihn (1956) 206 Or. 678, 294 P.2d 871, 878.) That case also states that the term 'financial circumstances' as applied to a child means something more than 'net monthly income' or 'gross annual income.' (Idem. at p. 877.) A child's ability to provide support for a parent must be considered in the light of his other commitments. For example, it has been held in California that a person's obligation to support his minor children comes ahead of the obligation to support a poor parent. (People v. Curry (1924) 69 Cal.App. 501, 231 P. 358.)

It is to be noted that the obligation imposed by section 206 is upon the children collectively. Although the California Supreme Court in an early case held that where a parent was being supported by certain of her children and there was no threat of a withdrawal of that support, the parent was not entitled to maintain an action against another child for contribution (Duffy v. Yordi, supra, 149 Cal. 140, 84 P. 838), section 206 has more recently been construed to require several children to support the parent in proportion to their abilities to do so respectively. (Britton v. Steinberg, supra, 208 Cal.App.2d 358, 24 Cal.Rptr. 831.) Other jurisdictions have stated the same rule. (See Hansis v. Brougham (1960) 10 Wis.2d 629, 103 N.W.2d 679; Mallatt v. Luihn, supra, 294 P.2d at p. 882; Lister v. Sheridan (1962) 33 Misc.2d 650, 226 N.Y.S.2d 232, 234.) Obviously, abilities cannot be measured or an equitable judgment made without a comparison of the net resourses respectively of each child to be charged. It is equally obvious that the extent of the liability of the children (individually or collectively) cannot be fixed equitably without weighing the extent of ability against the extent of the parent's needs. A further factor must be taken into consideration. To what extent does the parent have a call morally upon his child--by past treatment and not just by consanguinity? Where an actual abandonment of the child by the parent has occurred, the Legislature by the enactment of Civil Code section 206.5 in 1955 (Stats.1955, ch. 613, p. 1102) has provided means by which a child can cause all filial support liability to be wiped out. In cases both before and after the enactment of that section the factor of abandonment has been considered. (Duffy v. Yordi, supra, 149 Cal. p. 141, 84 P. 838; Britton v. Steinberg, supra, 208 Cal.App.2d, p. 359, 24 Cal.Rptr. 831.) Ill treatment, not amounting to abandonment, while not an absolute defense to a section 206 action may be such 'as to warrant only minimum consideration from a child or anyone else. * * * A child, neglected or abused during minority, may by marriage or otherwise, attain a status of power and wealth. Love, respect, loyalty, devotion and the natural and inevitable desire of a child to recompense a parent for the love, service, support and sacrifice usually lavished by a parent upon a child, cannot be legislated nor should the law force a child to make recompense for an assumed standard of upbringing, when a trial court finds on credible evidence that it never existed.' (Radich v. Kruly (1964) 226 Cal.App.2d 683, 687, 38 Cal.Rptr. 340, 343.)

This summary of the law has served its purpose if it has pointed out the many factors which a trial court must consider and weigh in determining whether, or to what extent, a child owes an obligation to support a parent. In making that determination the trial court possesses a wide discretion. (Woolams v. Woolams (1952) 115 Cal.App.2d 1, 251 P.2d 392.) The burden of proof, of course, is upon plaintiff. That burden includes an obligation of presenting to the trial court a clear picture of all factors necessary to a fair determination. In the case before us plaintiff contented himself with a very incomplete showing of his needs and an equally unsatisfactory showing of defendant's ability to meet those needs. We shall consider first what the record establishes as regards defendant's financial worth and commitments.

The financial position of defendant is paradoxical. He has a potential possible future net worth of over a hundred thousand dollars and presently not enough money to live on. This is simply explained. His principal asset is 600 acres of unimproved land. It is non-income producing. He owns secured promissory notes totaling $30,000. From these he derives a total monthly income of $826. (His total income from all sources is $882.) BUT against his equity in the 600 acres is a $56,000 trust deed. It bears 10 percent interest. Defendant's outlay to carry merely the Interest on that at 10 percent is $466.66 per month. When that payment is subtracted from $882, $415.34 is left. Should defendant fail to meet the $466.66 obligation, loss of his equity in his principal asset is most probable.

Payments on the notes defendant owns from which he derives the principal portion of his $826 monthly income are on account of both principal and interest. It has been computed that in three years the $30,000 asset will have been dissipated. One cannot say it is not being reinvested. The 'reinvestment,' however, is in the immediate preservation of the equity in the 600 acres.

Some day that acreage may have subdivision possibilities--if defendant can hold it long enough. Presently, the land is inaccessible. (Its only access bridge has been washed out.)

Our description of defendant's financial predicament is illustrative; not exhaustive. He has other monthly income of less than a hundred dollars. He has other assets, consisting principally of fractional interests in land equities, the values of which are uncertain. They produce no income.

He drives a 1962 automobile and has about $700 in a checking account.

There are no uncertainties regarding his liabilities. In addition to the $466.66 outlay for interest he pays out $50 per month on another secured loan. (He owes $19,200 on other loans on which he is apparently not making any payments and not able to make any.) He is married. He supports two minor children by a previous marriage at a cost of approximately $130 per month, including outlays for their medical and dental bills. His own medical bills are $50 per month. His wife owns the home they live in. His contribution to mortgage payments is $56.18 per month. There are normal living expenses and costs of automobile upkeep. The record shows that ends currently would not meet without help from his wife. From active work defendant earns between $50--$75 per month. He suffers from hepatitis, hypertension and has had to be hospitalized frequently.

Assuming he could find a purchaser, should he be required to dispose of the 600 acres? Plaintiff's real estate expert placed a value on this land of $125,000. Defendant refused to evaluate his equity. He said: '(M)ake me an offer.' Obviously, Mr. and Mrs. Gaines--expending over half of their rapidly dwindling income to carry this property--are gambling on its potential for their future security.

The needs and rights Of plaintiff can be understood only by stating that which an inadequate record shows of the family background.

Defendant's testimony is all there is of substance in the record to show thisbackground. ¹ He does not know who his father is, where he was born or when. His first memories are of living with his mother and brother (or half-brother?) Harry in Palestine. His mother's given name was Golde. Her maiden name was Kupferman. ...