Blank v. Blank

The defendant appeals from an order denying her motion for alimony pendente lite, counsel fees and costs in an action for divorce.

The parties had been married approximately eight years, and there were two children aged, respectively, six years and eighteen months. The action was instituted in Los Angeles County in September, 1930, a few days after defendant and the children had departed for Emporia, Kansas, to visit defendant’s mother. The complaint was based on charges of cruelty. Besides answering, defendant filed a cross-complaint charging cruelty, and she filed therewith her motion for alimony, counsel fees and costs. She was not present at the hearing and determination of her motion, having remained in Kansas at her mother’s home, and the evidence submitted in her behalf consisted of the verified pleadings and two affidavits, one being presented in the form of a questionnaire, the form used evidently being supplied under court order for such purpose. Plaintiff sought to have the questionnaire excluded on the technical ground that it was not authenticated in the manner required by law. The objections were properly overruled and the hearing narrowed down to the issue of the financial resources of the respective parties and their ability to provide for themselves.

Defendant averred in her affidavits that plaintiff was thirty-six years old, in good health, and had been a real estate salesman for about four years; that his present, monthly income from all sources was $175; that during the

All of the essential facts stated in defendant’s affidavits were denied by plaintiff in the oral testimony given by him at said hearing in his own behalf. According to his testimony he had been employed by his father selling bonds, and for the past year had earned only $500; that his father, who was well advanced in years, had provided plaintiff and his family with a home, had helped support the family and given him small amounts of money from time to time as his necessities required; that the total amount of these donations was possibly $400. He denied having received any money from defendant’s mother. He further testified that when his wife left she intended to remain away permanently; that the matter of divorce was discussed and that her mother, who was visiting them at the time, insisted that defendant settle the matter before she left, but that defendant refused to do so; also that defendant told him before she left that she did not intend to return; that her brother in New York had offered her a position at $300 a month which' she intended to accept and live in New York at her brother’s home, leaving the children with her mother. He also stated that defendant’s family was the owner of two large flour-mills in Kansas valued at approximately $250,000; and that defendant told him she owned a one-fifth interest therein. Continuing, he stated that the money

Section 137 of the Civil Code provides in part that when an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself and the children, or to prosecute or defend the action; and it provides also that a like order may be made against the wife. In -the present case, as will be noted, there is a sharp conflict in the evidence as to the financial worth of the respective parties and their ability to support themselves and the children. Evidently the trial court accepted as true the testimony given by plaintiff, which in our opinion is legally sufficient to prevent our holding that there was an abuse of discretion on the part of the trial court in making the adverse order. True, several of the cases cited by defendant involved circumstances somewhat similar to those presented here, and the trial court therein, in the exercise of its discretion, granted the order directing the husband to pay, and such order was sustained on appeal. And it may be conceded in the present case that if the trial court had seen fit to grant defendant’s motion, the evidence adduced in her behalf would have been legally sufficient to sustain such order on appeal. But it did not choose to take such action; and since under settled rules the trial court is the sole judge of the weight of the testimony and the credibility of the witnesses, we have no authority on appeal to substitute our judgment, even though we may believe that the evidence upon which the trial court based its order warranted a different conclusion. It is also true that in situations of this kind the trial court may follow the course suggested in Farrar v. Farrar, 45 Cal. App. 584 [ 188 Pac. 289 , 290], that is, grant the motion despite the fact that the husband was then destitute both of funds and ability to pay, and thereafter suspend his suit for divorce until he could do justice to his wife. In this regard the court in that ease quoted the following from Bishop on Marriage, Divorce and Separation (2d ed., sec. 981): “If he cannot aliment her, and give her the means of defense, he cannot have his divorce.” But there was no duty imposed

The order is affirmed.

Tyler, P. J., and Cashin, J., concurred.

A petition by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 3, 1933.