PETERS, P. J.
By a judgment affirmed by this court
(Kyne v. Kyne, 38 Cal.App.2d 122 [100 P.2d 806]) defendant Tom Kyne was ordered to pay a monthly sum for the support of plaintiff, Tom Kyne, Jr., found by a jury to be Tom Kyne’s illegitimate son. The present proceeding is a motion in the original action to increase the monthly support allowance from $60 to $250, and for attorneys’ fees. The trial court denied the application for an increase, and awarded plaintiff’s attorneys for their services on the motion the sum of $150. Plaintiff appeals from both portions of the order, contending that the trial court abused its discretion in denying the increase and in fixing the amount of the fee, and that prejudicial error was committed in excluding certain evidence.
The main action was brought under section 196a of the Civil Code which, prior to certain 1939 amendments, read as follows: ‘ ‘ The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, and in such action the court shall have power to order -and enforce performance thereof, the same as under sections 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.” It has been held that the issues involved in fixing the amount of support under this section are of equitable cognizance. (Kyne v. Kyne, 38 Cal.App.2d 122, at p. 133 [100 P.2d 806].)
The original judgment was dated December 16, 1937. At that time plaintiff was one year and ten months old. The judgment provided that defendant should pay to plaintiff $100 a month from the date of birth, February 15, 1936, to January 15, 1938, and thereafter “and continuing until further order of this Court, or until the majority of plaintiff” the sum of $60 per month. Defendant has made all payments called for by this judgment. No application for an increase [83]*83was made until the present motion was noticed for March 22, 1944. On that date plaintiff was eight years and one month old. The motion was based on the theory that since the original order was made in 1937 circumstances have so changed that an increase in the award is warranted. The alleged changed circumstances are that plaintiff is now eight years old, that the cost of living has increased since 1937, that defendant’s income has increased since 1937, and that the health of plaintiff’s mother is now such that she cannot work to contribute to his support.
Before directly discussing the evidence some reference should be made to the rules of law applicable to this type of proceeding. In fixing the amount of allowance the trial court necessarily has a wide discretion, and unless there has been an abuse of discretion the appellate court will not interfere with the determination of the trial court. (Gambetta v. Gambetta, 30 Cal.App. 261 [157 P. 1141] ; Brockmiller v. Brockmiller, 57 Cal.App.2d 623 [135 P.2d 184]; Hale v. Hale, 55 Cal.App.2d 879 [132 P.2d 67]; see eases collected 9 Cal.Jur. § 147, p. 809.) But the discretion conferred on the trial court is not absolute. As was said in Makzoume v. Makzoume, 50 Cal.App.2d 229, 231 [123 P.2d 72] : “But this discretion is not arbitrary. ‘. . . it must be exercised along legal lines, taking into consideration the circumstances of the parties, their necessities, and the financial ability of the husband. . . . In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason,—all the circumstances before it being considered.’ (1 Cal.Jur. 965.)” (See, also, to the same effect Kosloff v. Kosloff, 67 Cal.App.2d 374 [154 P.2d 431].)
In such a proceeding the trial court is not bound by technical rules of evidence. (Rose v. Rose, 109 Cal. 544 [42 P. 452]; Busch v. Busch, 99 Cal.App. 198 [278 P. 456]; Youree v. Youree, 1 Cal.App. 152 [81 P. 1023].) The trial court should admit all relevant testimony relating not only to the needs of the child but also to the financial condition of the mother and father. A child, legitimate or illegitimate, is entitled to be supported in a style and condition consonant with the position in society of its parents. As was said in Bailey v. Superior Court, 215 Cal. 548, at page 555 [11 P.2d 865] : ‘ The father’s duty of support for his children does not end with the furnishing of mere necessities if he is able to afford more.”
[84]*84The evidence in the present case, insofar as it relates to the issue of support, consists of the testimony of defendant, called by plaintiff under section 2055 of the Code of Civil Procedure, and the deposition of plaintiff’s mother. Defendant offered no evidence at all on his own behalf. Defendant testified that in 1943 he had filed a separate income tax return showing an income of about $6,400 for that year. He admitted that his wife likewise filed a separate return in the identical amount and that this entire income was from his business. Plaintiff then sought to prove that defendant’s actual income in 1943 was in fact $30,000. The trial court sustained objections to these questions. Counsel for plaintiff then made a formal written offer to prove that defendant had testified in 1936 and 1937 that he had transferred to his wife in April, 1936, just after the birth of plaintiff, certain real property, his interest in a partnership operating a concession at Bay Meadows and certain stock; that the above was all of defendant’s property with the exception of his betting commission business; that all of said transfers were made without consideration and for the express purpose of preventing plaintiff and his mother from obtaining any of said property for plaintiff’s support; that after making said transfers defendant received the income from the above-mentioned properties from his wife whenever he wanted it; that in 1943 the total income from the stock, the Bay Meadows partnership and the betting business was $30,000. As already indicated, the trial court refused to admit this testimony. The trial court also sustained objections to all questions relating to the income of defendant’s wife. Defendant testified that in 1937, when the original order for $60 per month was made, he had testified that his income was then $2,000. The trial court sustained an objection to the following question: “Was that affidavit and your sworn testimony that your income was $2,000.00 in 19 38, true 9 ’ ’ Counsel for plaintiff then attempted to get the witness to discuss his probable earnings in 1944 but the trial court sustained objections to all such questions. All of these rulings were erroneous, and clearly prejudicial. As already pointed out, one of the major issues in such a proceeding is the financial position of the father. Obviously, what might be a reasonable award against a father making $6,400 a year might and probably would be totally inadequate against a father making $30,000 a year.
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PETERS, P. J.
By a judgment affirmed by this court
(Kyne v. Kyne, 38 Cal.App.2d 122 [100 P.2d 806]) defendant Tom Kyne was ordered to pay a monthly sum for the support of plaintiff, Tom Kyne, Jr., found by a jury to be Tom Kyne’s illegitimate son. The present proceeding is a motion in the original action to increase the monthly support allowance from $60 to $250, and for attorneys’ fees. The trial court denied the application for an increase, and awarded plaintiff’s attorneys for their services on the motion the sum of $150. Plaintiff appeals from both portions of the order, contending that the trial court abused its discretion in denying the increase and in fixing the amount of the fee, and that prejudicial error was committed in excluding certain evidence.
The main action was brought under section 196a of the Civil Code which, prior to certain 1939 amendments, read as follows: ‘ ‘ The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child, by his mother or guardian, and in such action the court shall have power to order -and enforce performance thereof, the same as under sections 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.” It has been held that the issues involved in fixing the amount of support under this section are of equitable cognizance. (Kyne v. Kyne, 38 Cal.App.2d 122, at p. 133 [100 P.2d 806].)
The original judgment was dated December 16, 1937. At that time plaintiff was one year and ten months old. The judgment provided that defendant should pay to plaintiff $100 a month from the date of birth, February 15, 1936, to January 15, 1938, and thereafter “and continuing until further order of this Court, or until the majority of plaintiff” the sum of $60 per month. Defendant has made all payments called for by this judgment. No application for an increase [83]*83was made until the present motion was noticed for March 22, 1944. On that date plaintiff was eight years and one month old. The motion was based on the theory that since the original order was made in 1937 circumstances have so changed that an increase in the award is warranted. The alleged changed circumstances are that plaintiff is now eight years old, that the cost of living has increased since 1937, that defendant’s income has increased since 1937, and that the health of plaintiff’s mother is now such that she cannot work to contribute to his support.
Before directly discussing the evidence some reference should be made to the rules of law applicable to this type of proceeding. In fixing the amount of allowance the trial court necessarily has a wide discretion, and unless there has been an abuse of discretion the appellate court will not interfere with the determination of the trial court. (Gambetta v. Gambetta, 30 Cal.App. 261 [157 P. 1141] ; Brockmiller v. Brockmiller, 57 Cal.App.2d 623 [135 P.2d 184]; Hale v. Hale, 55 Cal.App.2d 879 [132 P.2d 67]; see eases collected 9 Cal.Jur. § 147, p. 809.) But the discretion conferred on the trial court is not absolute. As was said in Makzoume v. Makzoume, 50 Cal.App.2d 229, 231 [123 P.2d 72] : “But this discretion is not arbitrary. ‘. . . it must be exercised along legal lines, taking into consideration the circumstances of the parties, their necessities, and the financial ability of the husband. . . . In a legal sense, discretion is abused whenever, in its exercise, a court exceeds the bounds of reason,—all the circumstances before it being considered.’ (1 Cal.Jur. 965.)” (See, also, to the same effect Kosloff v. Kosloff, 67 Cal.App.2d 374 [154 P.2d 431].)
In such a proceeding the trial court is not bound by technical rules of evidence. (Rose v. Rose, 109 Cal. 544 [42 P. 452]; Busch v. Busch, 99 Cal.App. 198 [278 P. 456]; Youree v. Youree, 1 Cal.App. 152 [81 P. 1023].) The trial court should admit all relevant testimony relating not only to the needs of the child but also to the financial condition of the mother and father. A child, legitimate or illegitimate, is entitled to be supported in a style and condition consonant with the position in society of its parents. As was said in Bailey v. Superior Court, 215 Cal. 548, at page 555 [11 P.2d 865] : ‘ The father’s duty of support for his children does not end with the furnishing of mere necessities if he is able to afford more.”
[84]*84The evidence in the present case, insofar as it relates to the issue of support, consists of the testimony of defendant, called by plaintiff under section 2055 of the Code of Civil Procedure, and the deposition of plaintiff’s mother. Defendant offered no evidence at all on his own behalf. Defendant testified that in 1943 he had filed a separate income tax return showing an income of about $6,400 for that year. He admitted that his wife likewise filed a separate return in the identical amount and that this entire income was from his business. Plaintiff then sought to prove that defendant’s actual income in 1943 was in fact $30,000. The trial court sustained objections to these questions. Counsel for plaintiff then made a formal written offer to prove that defendant had testified in 1936 and 1937 that he had transferred to his wife in April, 1936, just after the birth of plaintiff, certain real property, his interest in a partnership operating a concession at Bay Meadows and certain stock; that the above was all of defendant’s property with the exception of his betting commission business; that all of said transfers were made without consideration and for the express purpose of preventing plaintiff and his mother from obtaining any of said property for plaintiff’s support; that after making said transfers defendant received the income from the above-mentioned properties from his wife whenever he wanted it; that in 1943 the total income from the stock, the Bay Meadows partnership and the betting business was $30,000. As already indicated, the trial court refused to admit this testimony. The trial court also sustained objections to all questions relating to the income of defendant’s wife. Defendant testified that in 1937, when the original order for $60 per month was made, he had testified that his income was then $2,000. The trial court sustained an objection to the following question: “Was that affidavit and your sworn testimony that your income was $2,000.00 in 19 38, true 9 ’ ’ Counsel for plaintiff then attempted to get the witness to discuss his probable earnings in 1944 but the trial court sustained objections to all such questions. All of these rulings were erroneous, and clearly prejudicial. As already pointed out, one of the major issues in such a proceeding is the financial position of the father. Obviously, what might be a reasonable award against a father making $6,400 a year might and probably would be totally inadequate against a father making $30,000 a year. If defendant had in fact divested himself of his properties to defeat plaintiff’s [85]*85claims for support, and if he was still enjoying the income from such properties, the trial court should have considered those facts in making the award. The law is well settled, and defendant cites no case to the contrary, that property fraudulently conveyed by a husband or father should be considered in fixing alimony or support. The rule is thus stated in 27 Corpus Juris Secundum 955, section 233(b) : “Property fraudulently conveyed by the husband to third persons may be considered in fixing the amount of alimony to be awarded.” (See, also, 19 C.J. § 588(2), p. 253; cited in support of both texts are Dougan v. Dougan, 90 Minn. 471 [97 N.W. 122]; Griffith v. Griffith (Mo.App.), 190 S.W. 1021; Grobart v. Grobart, 119 N.J.L. 565 [182 A. 630]; Ball v. Ball, 206 Ky. 532 [267 S.W. 1081]; see, also, Youree v. Youree, 1 Cal.App. 152 [81 P. 1023].) Defendant tacitly ad-
mits that in most eases evidence of fraudulent transfers is admissible in support cases, but urges, without citation of authority, that it was not admissible here because the evidence shows that long prior to the filing of the present motion plaintiff instituted an action against defendant to have these allegedly fraudulent transfers set aside, and that such action is still pending in another department of the superior court. There was no showing that the delay in deciding that case was in any way the fault of plaintiff. The exact theory why the pendency of this action should make the proffered evidence inadmissible is not very clearly stated by defendant. He states: “If the trial judge in the instant case had allowed evidence of the purported fraudulent transfers to be introduced, he would, in effect, be passing upon or rendering a decision in a matter that was not properly before the court and, in fact, was under submission in another department of the same court before a different judge.” (Res. Br. p. 10.) Apparently it is the thought of defendant that the pendency of the other action creates some sort of estoppel. The contention is without merit. The mere fact that plaintiff, to protect his rights in certain other judgments he has against defendant, has seen fit to bring an action to have certain claimed fraudulent transfers set aside cannot justify the trial court’s refusal to consider all relevant evidence in this support proceeding. Support proceedings are of an emergency nature, and both parties are entitled to have all relevant evidence admitted on the issues involved. One of the main issues [86]*86involved is the actual income of the father. Here plaintiff not only offered to prove that the transfers were fraudulent, but also that the income from the properties was actually made available to defendant by his wife whenever he wanted it. This was certainly relevant testimony on the issue of defendant’s ability to pay, and its exclusion was clearly not only erroneous but also prejudicial.
The evidence as to the wife’s income also should have been admitted. Obviously, in considering defendant’s ability to pay, evidence of his obligations, including his duty of support of his wife, is admissible. If the evidence shows that the wife has a large independent income and is in fact not being supported by the husband, those factors would be clearly relevant in determining how much money defendant actually had available to support his son.
The various questions relating to defendant’s prospective income for the year 1944 were also proper. They were not speculative. Plaintiff was entitled to show, if he could, that defendant’s income for 1944 would in all probability exceed that for 1943.
The trial court should clearly have permitted counsel for plaintiff to inquire as to whether, in 1937, when the original award was made, defendant’s income was but $2,000. If the original award was based on such an income, the admitted increase of income to at least $6,400 a year would be a most relevant factor to consider in determining whether the award should be increased.
In view of these serious and prejudicial errors the issues here involved must be sent back for a new trial. It should be mentioned that plaintiff’s mother testified to facts which, if believed, amply warranted an increase in the support allowance. Some time before she filed this proceeding as guardian ad litem for her son, she underwent a hysterectomy for a cancerous condition of her female organs. She was in bed when her deposition was taken and had been told that • she must remain there indefinitely and would not be able to work for at least a year. She was heavily in debt to relatives and doctors for expenses in connection with her operation. She has no assets of any kind. She testified that plaintiff is unable, on the allowance now existing, to dress like other boys, and has on occasion, expressed to her his embarrassment caused by his lack of proper clothing; that for the same reason [87]*87he cannot attend Sunday School; that she has been unable to buy him toys similar to those the other boys in his class have; that the boy would like to study music but she cannot, out of the present allowance, pay for such lessons; that the boy would like to go to a summer camp with his friends but cannot do so for lack of money; that the boy needs his tonsils removed but has no money to pay for the operation; that because of her sickness she must hire someone to assist her in caring for the boy. She also testified that she is now married; that her husband had been in the service; that he had been discharged about five months before the date her deposition was taken; that he was temporarily employed as a bartender at a salary of about $200 per month. Her husband, of course, is under no legal responsibility to contribute to the support of the child. Defendant analyzes the testimony of this witness, and by making certain calculations, proves to his apparent satisfaction that the witness admitted that $60 a month was all that was necessary to support the boy. This result is arrived at by simply disregarding certain of the items appearing in her testimony, such as the proposed tonsilectomy, the cost of music lessons, summer camp and incidentals, and by making no allowance at all for a reasonable amount for the care of the boy. While her estimate of $250 a month was undoubtedly too high, there can be no reasonable doubt but that the evidence demonstrates to a certainty the need for a material increase in the award. If the $60 award was reasonable in 1937, under the circumstances then existing, and we must conclusively presume that it was, then, in view of the increased cost of living in recent years, in view of the mother’s present inability to contribute to the child’s support, in view of the increased income of the defendant, and in view of the other changed circumstances appearing in the record, the need for an increased allowance was definitely established. In the light of this evidence, it might well be held that as a matter of law this plaintiff established the need for such an increased allowance. However, in view of the erroneous and prejudicial rulings in the evidence already discussed, it is not necessary to base the reversal on this ground. There can be no doubt that the rulings on the admission of evidence were erroneous and were prejudicial, and this alone requires a reversal.
So far as the allowance of attorneys ’ fees is concerned, it is obvious that there must be a new trial and that further ser[88]*88vices in connection with the motion have been rendered on this appeal and will be rendered on the new trial. The trial court on the new hearing will be in a position to evaluate the services as a whole. For that reason justice will best be served by reversing that portion of the order appealed from.
The portions of the order appealed from are reversed.
Knight, J., concurred.