Loeb v. Loeb

190 P.2d 246, 84 Cal. App. 2d 141, 1948 Cal. App. LEXIS 1174

• Court: California Court of Appeal
• Decided: March 2, 1948
• Docket: Civ. 15329
• Status: Published

Opinions

SHINN, Acting P. J.

This an appeal by Edwin' J. Loeb from an order awarding his former wife, Bessie Brenner Loeb, $500 per month temporary alimony and $1,500 suit money (including counsel fees) on account, in her action against him for division of thefr community property and for permanent support. Jurisdiction over these ‘two matters was expressly reserved in both the interlocutory and final decrees of divorce. The latter decree was entered on March 1, 1937.

Appellant seeks a reversal of the order awarding respondent pendente lite allowances for her support and for suit money on three grounds: (1) The award of temporary support went beyond the issues presented and was therefore in excess of the court’s power; (2) the showing of necessity required for both awards was not made; (3) section 142 of the Civil Code prohibits the awards. Before discussing the validity of appellant’s several contentions it may be noted that the reasonableness in amount of the awards is not questioned and that appellant’s ability to pay them is likewise conceded.

Appellant’s first contention is not sustainable. Section 137 of the Civil Code, which is the only code section specifically authorizing pendente lite allowances for support and suit money, does so in the following terms: “When an action for divorce is pending, the court may, in its discretion, require the husband or wife, as the case may be, to pay as alimony any money necessary to enable the wife, or husband, to support herself and her children, or to support himself and his children, as the case may be, or to prosecute or defend the action.” The two children of the Loebs are adults and their support is not involved.

In her petition initiating these proceedings respondent prayed for, among other things, an allowance of suit money, and for “such other and further relief” as the court might deem equitable and proper. The matter was thereafter heard upon an order for appellant to show cause why he should not be required to pay reasonable suit money. Throughout the hearing, counsel for both parties and the trial judge indicated on various occasions that the sole issue being tried was suit money. Nevertheless, the trial judge included in his order, sua aponte, an award of temporary support. Appellant challenges this award as being beyond the power of the court because no application therefor was made and because appellant had no notice at any time that the issue of temporary support was involved.

It is to be noted that the applicable portion of section 137, which we have quoted in full, contains no requirement of either application or notice. There is dicta in the decisions of our courts that an award of temporary support may be made ex parte. (See Mudd v. Mudd, 98 Cal. 320, 321 [33 P. 114]; Arnold v. Arnold, 215 Cal. 613, 614 [12 P.2d 435] ; Reed v. Reed, 40 Cal.App. 102,104 [180 P. 43].) The meager authority elsewhere on the point at issue is divided. (See note, 152 A.L.R. 445, 457.) While it undoubtedly is the better practice to grant temporary support only after application, notice, and hearing, we do not think that the trial court here, in departing from that practice, committed reversible error. The considerations governing the court’s discretion in awarding temporary support are identical with those controlling its discretion in awarding suit money. (17 Am.Jur. 452; Nelson, Divorce and Annulment (2d ed. 1945), § 12.06.) The language of our statutory authority, section 137, is also identical as to the proper basis for both awards, namely, necessity. It follows that when appellant made his defense against an award of suit money, he thereby made his defense against an award of temporary support. As a consequence, he suffered no substantial prejudice from the court’s failure to inform him that the court considered the question of temporary support to be before it as well. We conclude that under the circumstances of this case the trial court possessed the power to make on its own motion an award of temporary support. (Cf., Willey v. Willey, 51 Cal.App. 124, 126-7 [196 P. 101].)

A proper evaluation of the merit of appellant’s second contention, that a sufficient showing of necessity for pendente lite allowances of support and suit money was not made, calls for a general statement of the law governing such allowances and of the facts relied upon by respondent. These allowances are not a matter of absolute right. They may be granted in the sound discretion of the trial court, but section 137 does not empower the court to award temporary support and suit money except upon a finding of necessity.

Appellant contends that section 137 governs exclusively. Respondent replies that the awards were made under the general equitable powers of the court in accordance with the procedure specified in section 139, as well as section 137, Civil Code. The powers of the court in matters of divorce to which these sections relate are derived therefrom, and are not within the general equity powers. (Grannis v. Superior Court, 146 Cal. 245, 255 [79 P. 891, 106 Am.St.Rep. 23].)

A discussion of the respective contentions as to the proper construction of these sections calls for an examination of the functions of such awards. The manifest purposes of pendente lite allowances to a wife are to enable her to live in her accustomed manner pending the disposition of the action and to provide her with whatever is needed by her to litigate properly her side of the controversy. (Mudd v. Mudd, supra, 98 Cal. 320, 322; Busch v. Busch, 99 Cal.App. 198, 202 [278 P. 456] ; Locke Paddon v. Locke Paddon, 194 Cal. 73, 81 [227 P. 715].) If she possesses independent means sufficient for these purposes the allowances should not be granted. (Mudd v. Mudd, supra.) However, she is not required first to impair the capital of her separate estate. (Farrar v. Farrar, 45 Cal. App. 584, 586 [188 P. 289].) These principles of California law accord with the law prevailing generally elsewhere. (Westphal v. Westphal, 122 Cal.App. 379, 385 [10 P.2d 119] ; Notes, 15 A.L.R. 781, 35 A.L.R. 1099; 27 C.J.S. 889, 897, 924-5; Keezer, Marriage & Divorce (3d ed. 1946), §§ 590, 591, 604.) Thus, the general rule is that the propriety of pendente lite allowances to a wife turns primarily upon the sufficiency of her showing of need for them.

While not denying that necessity must be established to justify an award under section 137, respondent claims that section 139 authorizes temporary awards to a divorced wife without a showing of necessity. Section 139 provides, in brief, that the court may order permanent support for the wife and children “having regard to the circumstance of the parties respectively,” and that the court may from time to time modify such order. Respondent’s argument in regard to section 139 is that as jurisdiction over support was expressly reserved in the final divorce decree these awards constitute a modification of that decree made pursuant to section 139. We may assume, in considering this contention, that the status of the instant litigation does not differ in principle from the more common situation in which the court by final decree makes an award of support and thereby retains jurisdiction under the statute to modify it. Respondent’s position is that under the line of authority commencing with Lamborn v. Lam-born, 190 Cal. 794 [214 P. 862], these awards were made under both sections 137 and 139. The Lamborn decision held proper an award of suit money to a former wife to cover the expenses of her opposition to a reduction in her permanent support allowance upon the theory that such an award was either an additional allowance for her support as authorized by section 139, or was made during the pendency of the action as extended by section 137, or was necessary within the meaning of section 137. Like the Lamborn case, this action for permanent support and for division of the community property originates under section 139, and if permanent support is awarded ultimately to respondent, it will be granted in conformity with section 139. But we do not interpret the Lam-born decision, as respondent apparently does, as establishing an identical basis for all awards thereunder, whether they be temporary or permanent in character. The awards here, which by their own terms are expressly pendente lite, are merely temporary in character.

Pendente lite allowances and permanent allowances differ fundamentally in function. As already stated, the purposes of pendente lite allowances to a wife or former wife are to maintain her in her accustomed manner of living pending the outcome of the action and to enable her to present her side of the controversy fully. On the other hand the object of permanent allowances is to make an equitable apportionment between the parties. This is demonstrated both by the content of section 139 and the settled interpretation given that section. Our courts have construed an award of permanent support under this section to a wife to be in the nature of compensation for the wrong done her and, in this sense, a penalty imposed upon the husband. The statutory measure of the punitive damages so awarded is to be found in “the circumstances of the parties respectively.” (Scheibe v. Scheibe, 57 Cal.App.2d 336, 342 [134 P.2d 835].)

To conclude with respondent that this statutory measure for permanent allowances under section 139 applies as well to pendente lite allowances thereunder is both unsound and unwarranted. The only statute which expressly relates to pendente lite allowances is'section 137. It specifies necessity as the requirement for such allowances, and in so doing it is in harmony with the laws relating to temporary support and suit money prevailing generally throughout the United States. We find no statutory authority for placing temporary allowances that might be made under section 139 on the same basis as permanent allowances. It is clear, to us that the Legislature has been careful not to do this, and has recognized the difference in fundamental character of the two classes of allowances. To disregard what we recognize as a clearly expressed legislative policy would invade the field of legislation. We conclude that pendente lite allowances made under section 139 are granted on precisely the same basis as those made under section 137, that is to say, necessity. This conclusion is substantiated by an examination of the Lamborn line of authority. An inspection of the record in the Lamborn case discloses that the award at issue was made on an uncontradicted showing of necessity. Our Supreme Court in its most recent enunciation of the Lamborn rule has indicated a similar understanding of its effect. (Leupe v. Leupe, 21 Cal.2d 145,152-153 [130 P.2d 697] .)

We turn now to a consideration of the evidence relied upon by respondent as establishing the propriety of these awards. Respondent has no dependents. Prom her testimony and her income tax returns introduced in evidence, the following facts appear. During the six months immediately preceding the hearing, respondent’s living expenses, as itemized by her, averaged $460 a month, aside from income tax payments. This included a generous allowance of $100 a month for gifts, traveling, and entertainment. Respondent’s estimated federal income tax amounted to an additional $200 a month, and her state income tax on the basis of her 1944 tax did not run to more than $5.00 a month. This would give respondent total living expenses at the time of the hearing of $665 a month. However, beginning in 1945, her federal income taxes were paid by her property managers instead of by herself. Her income at this time amounted to about $795 a month. She earned $16 a month as a Christian Science practitioner and received, roughly, $98 a month in dividends and interest as shown by her 1944 federal income tax return. On the basis of the income shown on that return from her family holdings during the period following her mother’s death in May, 1944, her income from that source alone amounted to approximately $680 a month. Thus, according to respondent’s own evidence, her monthly income exceeded her maximum monthly expenses by almost $130. In view of the existence of this margin of income over outgo, respondent plainly had no need of temporary support. It is by no means clear that respondent made a disclosure of her entire income. Prior to her mother’s death in May, 1944, respondent’s family holdings were held in trust. Under the terms of the trust, respondent owned one-eighth of the corpus and received one-half of the net income accruing from such interest, the other half being added to that interest. According to her 1944 federal income tax return, she received in trust income in the neighborhood of $300 a month, but she understood that she could have drawn an additional $200 a month and, in fact, did draw $5,000 of this additional income for the purchase of war bonds. Upon her mother’s death in May, 1944, the trust terminated and respondent’s interest in the corpus increased from one-eighth to one-fourth. She also became entitled to all of the income from her interest instead of one-half thereof and thus the income available to her from her family holdings more than quadrupled. However, her withdrawals did not increase proportionately, but only from $300 to $680 per month, shown by her return as income for the two periods. Although this return should have reflected the entire amount of income which accrued to her interest in her family holdings, it appears from the facts just stated that it evidently was not made on that basis. The discrepancy between the amount reported, as increased income following her mother’s death, and the greater amount respondent was entitled to receive, namely, over four times her former income, either as testified to by her or as shown on her return, would indicate that the return showed only the amount of her withdrawals of such income during 1944.

However, our decision as to respondent’s right to receive temporary support and suit money is not based upon any uncertainty in her testimony but upon the amount of income admitted by her, and her large capital resources. Her holdings, which were valuable, and included more than $17,000 in liquid assets, independently of any question of adequacy of her admitted income to provide conveniently for her temporary support and suit money, required, as a matter of law, denial of awards for support or suit money.

Although respondent also did not disclose the amount or complete composition of her separate estate, she admitted that her interest in her family holdings was worth about $200,000. She failed to reveal the value of other property, consisting of her interest in her mother’s estate, the appraised value of which is in excess of $115,000. Respondent did divulge that she possessed over $15,000 in liquid assets, consisting of war bonds of a maturity value of $20,000 and a savings bank account of $2,200, which had been reduced from a 1941 figure-of $9,000, largely by war bond purchases.

As previously stated, the grant or denial of pendente lite allowances of temporary alimony and suit money rests in the sound discretion of the trial court. However, that discretion should not be exercised arbitrarily. (Sweeley v. Sweeley, 28 Cal.2d 389, 394 [170 P.2d 469]; Turner v. Turner, 80 Cal. 141, 144 [22 P. 72]; Smith v. Smith, 147 Cal. 143, 145 [81 P. 411].) The wife seeking these awards must establish her necessity for them. Such necessity may be proved only by showing that her need for proper support and the expenses of the litigation exceed her available resources. This means that the trial judge must be informed in detail not only as to her needs (Tremper v. Tremper, 39 Cal.App. 62, 66 [177 P. 868]), but also as to her resources. (Cf. Kenney v. Kenney, 220 Cal. 134, 138 [30 P.2d 398]; Busch v. Busch, supra, 99 Cal.App. 198, 201.) Here the trial court was uninformed of respondent’s total available resources. Manifestly, the court could not exercise a judicial discretion without knowledge of the essential facts.

The argument that these awards are required in order to avoid impairment of the capital of respondent’s separate estate is unsupported by the evidence. A review of the California decisions enunciating the rule of no impairment will illustrate the inapplicability of the rule to the factual situation of the instant case. In Kowalsky v. Kowalsky, 145 Cal. 394, 396 [78 P. 877], the wife’s entire separate estate consisted of only $700 in corporate stocks, and she was without other means of support. In Farrar v. Farrar, supra, 45 Cal.App. 584, 586, the wife’s separate income was $2.50 a month. In Whiting v. Whiting, 62 Cal.App. 157, 160 [216 P. 92], the wife owned $4,300 in nonineome-producing property and her entire other income consisted of her weekly salary of $16.50. In Busch v. Busch, supra, 99 Cal.App. 198, 200, the wife’s income from her property was shown to be about $8.00 a year. In Westphal v. Westphal, supra, 122 Cal.App. 379, 386, the wife’s annual income from her separate property of oil stock, worth about $15,000, did not exceed $500. The contrast between these factual situations and the one we have here is extreme. ° Respondent, who has no dependents, possesses a separate estate of a value considerably in excess of $200,000 and a separate income substantially in excess of $9,000 a year. Her maximum annual living expenses amount to less than $8,000 a year. In addition she possessed at the time of the hearing over $15,000 in liquid resources, which were accumulated income. Plainly, she was in no need of temporary support, and the expenses of litigation were well within her available resources. (Cf., Wilder v. Wilder, 214 Cal. 783, 785 [7 P.2d 1032]; Baldwin v. Baldwin, 28 Cal.2d 406, 418 [170 P.2d 670].) She was in a position to hire and compensate competent legal counsel and otherwise to finance this litigation. In this connection it is interesting to note that she never asked for temporary support and that her original petition, although praying for suit money, contained no allegation of her financial necessity therefor. To borrow somewhat the thought of the court in Henderson v. Henderson, 104 Colo. 325 [90 P.2d 968, 971], the trial court apparently proceeded on the theory that since appellant was wealthier than respondent, he should support her during her suit and finance it. That is not the law.

As previously stated, the power granted the court by section 137 is in line with the prevailing authority existing in other jurisdictions, in that it is intended to be exercised only in cases of necessity. After diligent search we have found no case in the United States in which an order for temporary support or suit money has been made in favor of a wife whose financial resources even remotely approached those of the respondent. The order in question presents no appeal to our sense of equity and justice, which tempts us to place a construction upon section 137 which would minimize its strict limitations and be out of harmony with principles which are well settled throughout the states. However, the views we express upon the matters before us should not be understood as indicating what would be a proper judgment in the instant case upon the ultimate issues of permanent support and division of the community property.

Appellant’s third and final contention is that section 142 of the Civil Code compels the reversal of these awards. The last sentence of section 142, as added in 1943, reads as follows: "Where there are no children, and either party has a separate estate sufficient for his or her proper support, no allowance shall be made from the separate estate of the other party.” Appellant contends that this mandatory provision applies, since the children of the parties are adults, respondent has a separate estate sufficient for her support, and there is no community property by reason of the insolvency of the community of appellant and respondent both on March 1,1937, the date of the final decree of their divorce, and as of the time of the hearing. Eespondent disputes the factual basis of this argument and also appellant’s legal conclusions therefrom. Eespondent also contends that appellant, at the hearing, waived.the protection of section 142 and may not now claim it. From a study of the record we conclude that the waiver was intended to relate only to the matter of permanent support and it therefore does not enter into our decision.

Apparently, section 142 does apply to awards of temporary alimony in situations meeting the conditions of the provision, but it would not seem to apply in any event to an award of suit money. (Baldwin v. Baldwin, supra, 28 Cal.2d 406, 413, 416.) We find it unnecessary to pass upon the merit of this final contention of appellant as to the applicability of the section to the facts taken as established by appellant or to those urged by respondent. Our previously-stated conclusion that the order constituted an abuse of the discretion entrusted to t¡he trial court requires a reversal.

The order awarding respondent pendente lite allowances of temporary alimony and suit money is reversed.