Bratnober v. Bratnober

309 P.2d 441, 48 Cal. 2d 259, 1957 Cal. LEXIS 180
CourtCalifornia Supreme Court
DecidedApril 9, 1957
DocketS. F. 19168
StatusPublished
Cited by28 cases

This text of 309 P.2d 441 (Bratnober v. Bratnober) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bratnober v. Bratnober, 309 P.2d 441, 48 Cal. 2d 259, 1957 Cal. LEXIS 180 (Cal. 1957).

Opinions

SPENCE, J.

Defendant wife appeals from an order modifying interlocutory and final judgments of divorce insofar as that order reduces the amount of alimony and child support payments. She contends that the evidence presented to the trial court did not constitute a legal basis for such modification, but the record does not sustain her position.

The parties married in December, 1940, and separated in 1949. Two children were the issue of the marriage. At the time of separation the parties divided their community property, the wife’s share netting her some $11,400. The wife then moved, with the children, to Illinois to live with her parents. The husband in 1951 went through bankruptcy. In 1952 he sued for divorce, and the wife cross-complained. During the trial of the case, the parties and counsel conferred with the trial judge in chambers as to the terms of a possible settlement. It was then orally agreed that the husband would make monthly support payments of $250— $100 per month for the support of each of the two children and $50 per month for the support of the wife—and that such provisions could be incorporated in any divorce decree. The trial then proceeded and an interlocutory decree of divorce was awarded to the wife on February 26, 1953. She was given custody of the two minor children, and the husband was ordered to make the above specified support payments.

On March 2, 1954, shortly before time for entry of the final decree of divorce, the husband moved to modify the interlocutory decree by reducing the support payments. By stipulation of the parties, the motion was thereafter made applicable to the final decree, which was entered on March 26, 1954. After a hearing, the court granted the husband’s [261]*261motion to modify on the 1 ‘ grounds of change in circumstances and [his] inability ... to pay order.” In its written order of modification the court found, in substance, that there had been a change in circumstances surrounding the husband’s financial condition since the entry of the interlocutory decree in that the original provisions for support were based upon the husband’s oral agreement at the time of the divorce trial to pay the specified sums, and that agreement was made the basis for the decree’s provisions; that no evidence as to the husband’s financial conditions, his earnings or earning capacity, nor of the needs of the wife and minor children was adduced at the divorce trial; that the husband made the agreement with the hope, expectation and understanding that his earnings and monthly income would be substantially increased following the entry of the interlocutory decree, either in the position in which he was then employed or in another position which he was expecting soon to take; that neither of these expectations was realized, and as a result he had not been able to make the payments required; that he was obliged to borrow money in order to make the payments up to and including February 26, 1954; and that he had no property or income of any kind, other than his earnings, which he might use to comply with the court’s original support order. Accordingly, the court reduced the support payments for each child to $75 per month and the alimony payment for the wife to $1.00 per month.

The evidence indisputably shows that the husband’s take-home pay at the time he agreed to the original payments was $338.62 per month, and that it remained the same thereafter, less $2.00 because of increased social security deductions; and that he was obliged to borrow $3,200 from his mother in order to make the support payments up to February 26, 1954.

Defendant wife contends that there was no showing of changed circumstances to justify the modification. Since it “would be incongruous to allow an appealable order to become final and yet to concede the power of a court at a later date, upon the same state of facts, to issue an order nullifying it” (Snyder v. Snyder, 219 Cal. 80, 81 [25 P.2d 403]), it is generally held that the “trial court is without authority to make an order reducing the amount of alimony [or support payments] awarded in an interlocutory [or final] decree of divorce in the absence of a showing that there has been a change in conditions subsequent to the entry of [such] decree.” (Ralphs v. Ralphs, 86 Cal.App.2d 324, 325 [194 P.2d 592].) [262]*262However, upon a proper showing, “the court possesses power to modify [a support] order because of changed circumstances (Civ. Code, § 139) the justification for such “order depends, on the facts and circumstances of each case”; and the “propriety of [the] modification rests largely in the discretion of the trial court. ’ ’ (Moore v. Moore, 133 Cal.App.2d 56, 58-59 [283 P.2d 338] ; Triest v. Triest, 67 Cal.App.2d 320, 322 [154 P.2d 2].)

At the modification hearing, plaintiff husband testified that at the time of the divorce trial he had been working for a record firm about a year and a half; that he anticipated an increase in salary as of that time, and a further raise later; that he had also been negotiating with another company for a better position, with “substantially more” money; that neither of these expectations materialized and, in fact, his net monthly salary was $2.00 less because of additional social security deductions. Defendant wife argues that these expectations of plaintiff husband have no pertinency because it does not appear that they were communicated to her or the court at the divorce trial. She calls attention to the affidavit of the attorney who then represented her, stating that the original support payment “was not conditioned upon any increase in earnings.” She relies on the rule pertaining to contracts that the undisclosed intentions of a party to a contract do not furnish a'basis for its modification. (Brant v. California Dairies, Inc., 4 Cal.2d 128, 133 [48 P.2d 13] ; Bell v. Minor, 88 Cal.App.2d 879, 882 [199 P.2d 718].) However, a support award does not have the finality of the ordinary contract as it is subject to re-examination by the court at any time. (Civ. Code, § 139; Woolams v. Woolams, 115 Cal.App.2d 1, 7 [251 P.2d 392]; Dunning v. Dunning, 114 Cal.App.2d 110, 114 [249 P.2d 609].) Plaintiff husband maintains that the disclosure was made at the divorce trial as appears from his own testimony at the modification hearing, bnt that if there is any uncertainty or ambiguity in the record on that point, such disclosure could reasonably have been inferred by the court at the modification hearing as a circumstance justifying the reduction in the support payments. (Kossine v. Styliano, 40 Cal.App.2d 721, 724 [105 P.2d 952].) But the parties’ conflicting views on this question of disclosure need not be resolved here, for the propriety of the modification order does not necessarily depend upon such disclosure.

In line with his motion for modification, plaintiff husband testified that his expectations as to future salary [263]*263increases constituted the basis for his agreement to make the support payments originally provided.

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Bluebook (online)
309 P.2d 441, 48 Cal. 2d 259, 1957 Cal. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bratnober-v-bratnober-cal-1957.