Moore v. Moore

• Decision Date: 09 July 1969
• Citation: 79 Cal.Rptr. 293,274 Cal.App.2d 698
• Court: California Court of Appeals Court of Appeals
• Parties: Jack W. MOORE, Plaintiff, Cross-Defendant and Respondent, v. Helen Gayle MOORE, Defendant, Cross-Complainant and Appellant. Civ. 33589.

Page 293

79 Cal.Rptr. 293

274 Cal.App.2d 698

Jack W. MOORE, Plaintiff, Cross-Defendant and Respondent, v. Helen Gayle MOORE, Defendant, Cross-Complainant and Appellant.

Civ. 33589.

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

July 9, 1969.

Rehearing Denied July 30, 1969.

Mark F. Jones, Jr., Los Angeles, for defendant and appellant.

Robert P. Amacher, Downey, for plaintiff and respondent.

FOURT, Associate Justice.

This is an appeal from an order requiring the defendant and cross-complainant (mother) to contribute a sum for the partial support and maintenance of two of her children.

Originally the plaintiff husband and father of the children brought an action in divorce from the defendant wife and mother of the children. The wife and mother cross-complained for divorce. The parties made and entered into a property settlement agreement. It was then stipulated that the complaint and answer to the complaint and answer to the cross-complaint be deemed withdrawn and that the default of cross-defendant (husband and father) be entered. The interlocutory decree of divorce (July 23, 1962) provided that the agreement was approved and the parties were ordered to perform the executory provisions thereof, after which the agreement was set forth in full in the judgment. The custody of the three then-minor children (2 girls and 1 boy) was awarded to the wife and mother and the husband and father was ordered to pay to the wife and mother the sum of $175 monthly for the support and maintenance of said children $58.34 for each child). The children were not to be removed from California without the written consent of the other parent first had or the order of the court. On August 15, 1963, a final judgment of divorce was granted on the cross-complaint. The provisions of the interlocutory judgment were adopted in the final judgment.

On November 21, 1967, a stipulation was made and entered into by the parties and their respective counsel to the effect that the custody of the children be awarded to the husband and father (cross-defendant) of said children subject to the mother's right of visitation and that the husband and father of said children pay no more support for the children to the mother of said children. Each of the parties to the action was remarried subsequent to the final judgment of divorce.

On February 16, 1968, the husband and father of the children filed a declaration wherein it was stated in effect that the boy was then in Douglas, Wyoming (where he had been sent by his mother without the father's consent) and that he wanted to come home, that to have the boy would require added living quarters, that a paper products company of the cross-defendant and father of the children had gone out of business thereby cutting off expected income, that the youngest daughter was about to graduate from high school and desired to go to college. The father requested that the mother be ordered to pay for the children's partial support or maintenance. An order to show cause was issued and a hearing was had thereon. The court found that the father's expenses for two of the children (the oldest child was married and consequently is now of no concern in this proceeding) residing with him were in excess of $250 per month, that his expenses for the new residence for himself and the children would be $225 per month commencing April 1, 1968, that the mother earned $380 per month take-home pay as her salary from her employment and that such earnings were within the language of section 171c of the Civil Code ¹ and were available for her separate obligations, that she had the ability to contribute $80 per month toward the support of said children (allocated $40 per month per child). The court then ordered that the order of November 21, 1967, be modified in that the mother of said children should pay to the father the sum of $40 a month per child commencing April 1, 1968, and continuing until the further order of the court. A timely notice of appeal from the order was filed.

Appellant now asserts that the court is without jurisdiction to modify the order of child support for the reason that there had been no change in circumstances after the date of the order of November 21, 1967, and that the father was primarily liable for the support of the children and the mother was only secondarily liable therefor and no showing was made that the father was unable adequately to support the children.

Section 196 of the Civil Code provides as follows:

' § 196. Obligation of parents for the support and education of their children. The parent entitled to the custody of a child must give him support and education suitable to his circumstances. If the support and education which the father of a legitimate child is able to give are inadequate, the mother must assist him to the extent of her ability.' The fact that the father of the children has the physical custody of the children makes him primarily liable for their support, however it is clear that there is a secondary liability imposed upon the mother of the children. (See Blair v. Williams, 86 Cal.App. 676, 680, 261 P. 539; Metson v. Metson, 56 Cal.App.2d 328, 333, 132 P.2d 513; Newell v. Newell, 146 Cal.App.2d 166, 178, 303 P.2d 839; Chapin v. Superior Court In and For Kern County, 239 Cal.App.2d 851, 856, 49 Cal.Rptr. 199; Nunes v. Nunes, 62 Cal.2d 33, 39, 41 Cal.Rptr. 5, 396, P.2d 37; Stargell v. Stargell, 263 Cal.App.2d 504, 510, 69 Cal.Rptr. 715.)

'No precedents are found which specifically define the criterial to determine when the father is or is not able to give adequate support. Plaintiff contends that so long as the father has any resources at all the mother cannot be required to pay. It is true that when neither the child nor the mother has any resources the father may be compelled to resort to his capital. (Citations.) That principle does not, however, preclude examination of other resources available to the child either from his own estate or from his mother. In many cases the courts have considered other available resources in determining the extent to which the father should contribute to the support of the child. (Citations.) 'The trial court has the power to require either father or mother or both to assist in the support of minor children (Civ.Code, § 196), and the community property, quasicommunity property, and the separate property may be...