Meagher v. Meagher

• Decision Date: 14 March 1961
• Citation: 190 Cal.App.2d 62,11 Cal.Rptr. 650
• Court: California Court of Appeals Court of Appeals
• Parties: Patricia N. MEAGHER, Plaintiff and Respondent, v. William G. MEAGHER, Jr., Defendant and Appellant. Civ. 19399.

Page 650

11 Cal.Rptr. 650

190 Cal.App.2d 62

Patricia N. MEAGHER, Plaintiff and Respondent, v. William G. MEAGHER, Jr., Defendant and Appellant.

Civ. 19399.

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

March 14, 1961.

Wilhelm & Blatt, Robert O. Wilhelm, William J. Graham, Redwood City, for appellant.

Haley, McInerney & Logan, William H. McInerney, Oakland, for respondent.

TOBRINER, Justice.

Appellant husband appeals from a superior court order directing him to pay to respondent wife and the minor children of the parties approximately $750 per month as temporary alimony and support. He charges that the court 'abused its discretion' in ordering him to pay more per month 'than the evidence showed he was earning.' We believe that for the reasons discussed infra the trial court's order constituted a proper exercise of its discretion.

We set forth the facts briefly.

Appellant left respondent and their home in Oakland, California, on August 25, 1959. As of that date, appellant earned $2,083 per month as vice president of sales of Independent Iron Works, Inc., a family-owned corporation in which he held 410 shares of stock. From November, 1957, to September, 1959, he had been paid that amount. For the month of September, however, he received $750. On September 30, 1959, he terminated his employment with the Independent Iron Works and went to work for $624.05 per month as a salesman for Frees & Sons, a Kentucky firm in the process of purchase either by Independent Iron Works or appellant's family. Respondent filed a complaint for divorce in Alameda County on October 15, 1959. Thereafter, on December 9, 1959, appellant obtained a default divorce in Nevada.

Respondent applied for attorneys' fees, court costs, alimony pendente lite, allowance for support, and custody of the three minor children, showing that to maintain herself and the children she required approximately $900 per month. The court awarded her $300 per month alimony, $100 per month for support of each of the three children, $750 attorneys' fees, $250 for costs, and approximately $150 per month from rent on a gasoline station owned by the parties. The order provided that appellant pay all existing obligations and taxes on the residence. The court further enjoined other designated defendant officers and owners of the Independent Iron Works from altering in any way the interests of appellant, respondent, or their children in the corporation. These defendants have not appealed from that order.

Since the husband does not question the need of the wife and family for the awarded amount, the sole issue turns upon the husband's ability to pay that amount.

The facts indicated that for the twenty-two months preceding the separation appellant earned $2,083 per month working for the family-owned corporation; that he terminated such employment almost immediately after the separation and commenced work at $624.05 take-home pay per month with a firm whose purchase his family or the family corporation was currently negotiating. Appellant was 41 years of age and in good health. He owned a substantial stock interest in an admittedly highly valuable family corporation. He apparently terminated his favorable association with that corporation at the very time he deserted his family and sought to shed his family responsibilities. In view of those facts the trial court could properly conclude that the 'potential of this man' and his apparent 'substantial interest' in the family corporation indicated his ability to meet the awarded payments. The court could evaluate the peculiar coincidence of salary reduction in the family-owned firm and the marital separation.

Instead of narrowly circumscribing the trial court to a consideration of the single aspect of the husband's current earnings, the cases wisely permit an examination of the total situation. The husband's plea in Estes v. Estes, 1958, 158 Cal.App.2d 94, 322 P.2d 238, that it "was an abuse of discretion for the court to order defendant to make payments which exceeded his total income," (158 Cal.App.2d at page 96, 322 P.2d at page 239) sounds in the same key as that of appellant. But the court quieted it with this observation: 'In finding that the husband has the ability to pay the amounts ordered the court is not restricted to a consideration of his salary alone, but may consider all the evidence concerning his income, assets and abilities. Where, as on the instant appeal, there is substantial evidence that the husband has the 'capacity to discharge the obligation of the support award', such award is not such an abuse of discretion as would warrant a...