Primm v. Primm
| Citation | 46 Cal.2d 690,299 P.2d 231 |
| Parties | Josephine PRIMM, Plaintiff and Appellant, v. Ernest J. PRIMM, Defendant and Respondent. Josephine PRIMM, Plaintiff and Respondent, v. Ernest J. PRIMM, Defendant and Appellant. L. A. 23409, 23657. |
| Decision Date | 28 June 1956 |
| Court | United States State Supreme Court (California) |
Willis Sargent, Syracuse, N. Y., and Sidney H. Wyse, Pasadena, for J. primm.
Hanna & Morton and David A. Thomas, Los Angeles, for E. J. Primm.
On June 14, 1951, the Superior Court of Los Angeles County (Judge Kurtz Kauffman, presiding) entered an interlocutory decree granting to defendant, Ernest J. Primm (upon his cross-complaint), a divorce from Josephine Primm (who had filed an action for divorce against defendant, Ernest J. Primm).
The interlocutory decree awarded the custody of the five minor children of the parties to plaintiff, with the provision that defendant was entitled to their custody for six weeks each year commencing on the first day of July. It ordered that defendant pay to plaintiff the sum of $1,000 per month except for the month of July 'to provide the necessities of life for said minor children, including food, clothing, transportation, laundry, utilities, rent, taxes, recreation, music lessons, salaries of cooks, maids, gardeners and nurses, if any; and related household expenses, and other incidental expenses attendant upon the support, education and maintenance of said minor children.'
On March 17, 1954, plaintiff obtained an order to show cause seeking an increase in the amount of support and maintenance for her five children from $1,000 per month for eleven months to $2,000 per month for eleven months and for $1,000 for the twelfth month, and for attorney's fees.
On May 3, 1954, a hearing having been previously held, Judge Kauffman denied plaintiff's application for a modification of the interlocutory decree of divorce and allowed her the sum of $300 for attorney's fees incurred in connection with such proceeding. Plaintiffs appeals from this order.
On August 26, 1954, after a hearing, Judge Clarke made an order allowing plaintiff $1,000 for attorney's fees and costs incurred in connection with her appeal from the court's order of May 3, 1954. Defendant appeals from this order awarding attorney's fees and costs.
Two questions are presented in connection with the appeal from the order denying plaintiff's application for a modification of the provisions of the interlocutory decree relating to the award of a sum for the support of the minor children.
First: Did the trial court abuse its discretion in refusing to modify the interlocutory decree of divorce by increasing defendant's payments for the support of his children?
No. This conclusion is governed by these pertinent rules:
(1) When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact. (Treadwell v. Nickel, 194 Cal. 243, at page 260(5), 228 P. 25; Estate of Isenberg, 63 Cal.App.2d 214, at page 217(3), 146 P.2d 424; see also cases cited in 6 West's Cal.Dig. (1951), Appeal and Error, k989, p. 606, and in 2 McK.Dig. (1946), Appeal and Error, § 1235, p. 837.) 1
(2) When two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court. (Wilbur v. Wilbur, 197 Cal. 1, at page 7(1), 239 P. 332; Wing v. Kishi, 92 Cal.App. 495, at page 497(3), 268 P. 483.)
(3) In a proceeding to modify the amount allowed in an interlocutory decree of divorce for the support of the minor children of the parties, such amount is in the first instance a matter resting in the sound discretion of the trial court, and an appellate court will not interfere with the action of the trial court unless, as a matter of law, an abuse of discretion is shown. (Sawyer v. Sawyer, 57 Cal.App.2d 582, at page 584(2), 134 P.2d 868; Brockmiller v. Brockmiller, 57 Cal.App.2d 623, at page 625(1), 135 P.2d 184; cf. Williams v. Williams, 80 Cal.App.2d 28, at page 29(1), 181 P.2d 110.)
(4) Under sections 138 and 139 of the Civil Code 2 the court may make necessary or proper provision for the custody, care and education of the minor children of the parties but its jurisdiction to make such orders is limited to the conditions and circumstances existing at the time they are made, and the court cannot then anticipate what may possibly thereafter happen and provide for future contingencies. (Schammel v. Schammel, 105 Cal. 258, at page 261, 38 P. 729; see also 16 Cal.Jur.2d (1954), § 276, p. 570.)
Applying the foregoing rules to the instant case, the record discloses that plaintiff deposited the $1,000 she received each month from defendant in a bank account denominated 'household account.' In 1953 she deposited in this account $11,000 received from defendant. She also deposited therein $5,155.50 of her separate funds. From this account she paid substantial amounts on her own investments, all expenses for maintaining the house which she and the children shared, all expenses for food for herself, domestic help and the children, the expenses for her automobile and also insurance premiums on a policy upon her own life. She paid from this account final payments in 1953 upon the purchase of a Cadillac automobile, which is her separate property. She had also made deferred payments upon the automobile from this account.
For about six to eight months she engaged in the real estate business and used her automobile in connection therewith. The expense of the automobile while used in her own business was charged to the household account, as was the insurance upon the same.
In December 1953 she purchased as her separate property a house in San Marino, for which she paid $40,000 and upon which $5,000 was expended for alterations and repairs. She gave a trust deed upon the house to secure the unpaid balance of the purchase price, and each monthly payment of $134 during 1953 was deducted from the household account. She also made a personal loan which was repayable at the rate of $150 per month. These payments were likewise made from the household account, as was $1,413 for carpenter work and painting on her new home. Many other payments of a similar nature were made from the account. However, no useful purpose would be served by setting forth the items in detail.
Plaintiff concedes that she has not allocated the expenses between herself and her children. The burden was upon her to make a showing in the trial court that it was necessary for her to have increased funds for the proper support of her children. This she failed to do.
The uncontradicted evidence further shows that plaintiff desired to have the increase in allowance for the purpose of meeting future needs of the minor children, for example, to install a swimming pool for them at a future date, to buy a horse for one of the children to ride at some time in the future, to use part of the money in the future to purchase an automobile for her daughter Joan, who at the time of the hearing was 15 years of age, and for other similar future expenses. Clearly such items under the 4th rule, supra, were not proper items to be considered as a basis for ordering defendant to pay plaintiff additional sums for the support of the children.
The record fails to disclose any evidence which shows a necessity for increasing the allowance in order to properly provide for the maintenance, care and education of the minor children of the parties. On the other hand, it discloses that at the present time defendant is providing adequately for his children. Therefore, there is a total absence of any showing of an abuse of discretion of the trial court.
The same judge who tried the divorce proceeding passed upon the motion for a modification of the...
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