Woolams v. Woolams

• Court: California Court of Appeals
• Writing for the Court: BRAY; PETERS, P. J., and FRED B. WOOD
• Citation: Woolams v. Woolams, 115 Cal.App.2d 1, 251 P.2d 392 (Cal. App. 1952)
• Decision Date: 22 December 1952
• Docket Number: No. 15321,15321
• Parties: WOOLAMS v. WOOLAMS.

Page 392

251 P.2d 392

115 Cal.App.2d 1

WOOLAMS v. WOOLAMS.

No. 15321.

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

Dec. 22, 1952.

Phillip Barnett, San Francisco, for appellant.

Freitas, Freitas & Allen, San Rafael, for respondent.

BRAY, Justice.

Plaintiff, a polio victim 36 years of age, in an action brought under section 206, Civil Code, recovered judgment against defendant, her father, for $250 per month support. Defendant appeals.

Question Presented.

Did the trial court abuse its discretion?

Facts.

Defendant at the time of trial in 1950 was 63 years old. Prior to 1941 when plaintiff's mother divorced him, all three lived in affluence, defendant having an income of around $100,000 per year. October 7, 1939, plaintiff was stricken with poliomyelitis, and for approximately three years was confined to her bed. She is still crippled from the waist down, has to be lifted as she is unable to walk, and requires constant care and attention, medical and thereapeutic treatment. She has no financial resources. Prior to the divorce defendant provided nurses and spent over $12,000 in medical and nursing care. In the divorce decree the mother was awarded $300 per month alimony, which according to their property settlement agreement included support and maintenance of plaintiff. This alimony is the mother's only financial resource. In 1942 plaintiff broke her hip. Defendant paid a $500 doctor's bill thereby incurred. There after until 1944 plaintiff was supported entirely by the mother out of this alimony. In December, 1944, apparently due to the urging of plaintiff's attorney, defendant started paying plaintiff $75 per month. Later, her attorney succeeded in getting this support raised to $100 per month. Approximately two years before the trial defendant gave plaintiff or her mother $1400 to pay back bills incurred by the mother. Defendant required plaintiff to execute a note to him in that amount. He testified that it was for income tax purposes.

Since 1941 plaintiff and her mother have been diligently and bravely seeking a restoration of plaintiff's ability to walk. They have moved from place to place in an attempt to better her condition or to provide quarters more suitable to her condition. On one occasion they went to Sister Kenny's hospital in Minneapolis for four months' treatment. To finance the trip, the mother sold her furniture, jewelry and piano. Defendant was not asked to assist. The mother is getting older, and has had eight years of 24 hour duty taking care of plaintiff. Plaintiff should have a 24 hour nurse which would cost $150 per month. Plaintiff's doctor testified that plaintiff needs a great deal of physio-thereapy, massage and re-education of her muscles. She requires a special diet as she is overweight. Plaintiff testified that she takes lessons in ceramics as she hopes to teach the subject one day. She also stated that physical activities such as sue of a sewing machine by her feet, a piano by her hands, swimming and exercises with bars and rings would be helpful. The polio foundation has given her a wheel chair and other help including supplying her physio-therapy and massage. Plaintiff has a great desire to overcome her paralysis, marry and have children. She has ability as a sculptress and in time might become self-supporting if she could use her hands properly and had the equipment and material. The evidence supports the conclusion that her mother is devoting her entire time and resources to plaintiff's care and that plaintiff is exerting every effort towards her own rehabilitation. Defendant urges that both mother and daughter fail to realize his financial situation and theirs and are unwilling to reduce their standard of living and to live as other polio victims with limited income do. The evidence shows some support for this statement. Thus, the daughter has planned an ideal house for a polio victim to be built on a portion of the father's property and which would be highly expensive to build. She pointed out how much help she could get from a hydromatic car which she could learn to drive, a sewing machine, a piano, a gymnasium and a small swimming pool. However, even an impecunious polio victim may point out what things would be helpful to her in her earnest desire to be normal again. 'While to the well child, food, clothing, and education, according to the parent's circumstances, are sufficient, if the child be either a temporary or permanent invalid, additional care may be required.' Simoneau v. Pacific Electric Ry. Co., 159 Cal. 494, 506, 115 P. 320, 326. Whether those things are attainable is a different question, dependent upon the earning ability and resources of her father. Any polio victim can, and plaintiff did, show a need far in excess of the amount allowed. But the coat must be cut to fit the cloth. This brings us to the vital question in the case----

Defendant's Financial Situation.

Defendant is now paying plaintiff and her mother $400 per month. He also pays $576 per year ($48 per month) premium on life insurance of which the mother is the beneficiary. (Apparently there is a $9,195 loan against this policy.) He has been an accountant, but since 1930 has been a promoter, investigating business propositions for clients, bringing investors and people having money to invest together. He has no office or fixed income. The period between making deals is long. He testified his gross income in 1942 was $6,123.61, in 1943, $12,683.97, in 1944, $11,731.02, in 1945, $12,654.43, in 1946, $7,423.37, in 1947, $1,955.13, in 1948, $5,252.22, in 1949, $10,152.47. These figures are taken from his income tax reports. He claims his net income after paying support to plaintiff and her mother in 1947 was minus $4554.20, in 1948, minus $215.65, and in 1949, plus $1051.36. He computes the amounts paid to plaintiff and her mother in 1949 as totaling 60 per cent of his gross income, and in July, 1950 (at the time of trial) as 57 per cent. It appears that in determining gross income he first deducts income taxes. He claims he has unsecured liabilities of $9,683.67, consisting of a bank overdraft of $129.80, personal loans $4,000, and a tax liability of $5,453.87. This tax liability is contingent and questionable. His only assets are furniture worth $1000 in storage at $17.50 per month and unimproved real property in Marin County which he purchased in 1926 for $97,000, portions of which he has sold from time to time to liquidate his liabilities. Defendant claims he has tried but has been unable to sell this property. There is a loan against the property for $13.490.83. One Nipper, a realtor called by plaintiff, estimated the value of the property as $43,500, although he said 'I would not say it has reasonable market value now.' His value was based upon selling it parcel by parcel, assuming that each individual would take care of his own sewer extension. Defendant offered no testimony as to the value of this property. The court found its market value to be in excess of $20,000 over the lien. (On motion for new trial, defendant filed the affidavit of one Jones to the effect that 'the net realizable return for the sale of said property would not exceed $4,000.00' over the lien.) Defendant claims that at the time of the divorce the community debts were $62,330, including expenses of plaintiff's illness, of which he has paid off $52,281; that he is supporting plaintiff to the extent of his ability. He resides at the Pacific Union Club in San Francisco and belongs to the Olympic Club. He contends these memberships are necessary because it is there he gets his business contacts. His living expenses are not high, costing him about $200 per month. He claims he has tried to get a job but doubts if a large firm of accountants would employ a man of his age. He 'cannot handle the little stuff' and feels that his best opportunity lies in fairly good size promotions. At the time of trial he was not expecting any substantial fees and did not know where he would get the next $300 to pay plaintiff's mother. He has no fixed income. Some months he receives nothing. He has been fortunate in being able to borrow to keep him going until fees come in.

Did the Court Abuse Its Discretion?

The court found that defendant 'is an able-bodied man of considerable experience in the...