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District Court of Appeal, Second District, Division 3, California.


Civ. 15329.

Decided: October 08, 1947

Lewinson & Armstrong and Herman F. Selvin, all of Los Angeles, for appellant. Guy T. Graves, of Los Angeles, for respondent.

This is 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 a division of their 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.

Section 137 of the Civil Code authorizes pendente lite allowances for support and suit money 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.

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.

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 sponte, 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. 14; 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), sec. 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, 127, 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 temporary alimony 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 alimony and suit money except upon a finding or necessity. The manifest purpose of these allowances to a wife is 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, 33 P. 114; 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., Divorce, §§ 205, 208, 222, pages 889, 897, 924, 925; Keezer, Marriage & Divorce (3d Ed. 1946), secs. 590, 591, 604.) Thus the general rule is that the propriety of pendente lite allowances to a wife turns upon the sufficiency of her showing of need for them.

Respondent has no dependents. From her testimony and her federal 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 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.

Assuming, however, that respondent's federal income tax liability was borne ultimately by herself, the above figures of income and outgo conceivably might furnish a proper basis for an award to suit money if the income shown constituted respondent's entire available income. The record shows that it does not. 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 a 1/818th interest in the corpus and received 1/212 of the net income accruing from such interest, the other 1/212 being added to her interest in the corpus. According to respondent's testimony as corroborated by 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 1/818th to 1/414th. She also became entitled to all of the income from her interest instead of 1/212 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. Obviously the amount of income available to respondent at the time of the hearing was substantially in excess of that which she disclosed.

Respondent likewise 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, and those holdings were shown to be somewhat undervalued. 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, 278 P. 456. 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 material facts.

The argument that these awards are justified by the necessity for avoiding 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, 188 P. 289, 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 non-income-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, 278 P. 456, the wife's income from her property was shown to be about $8 a year. In Westphal v. Westphal, supra, 122 Cal.App. 379, 386, 10 P.2d 119, 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 paraphrase somewhat the language of the court in Henderson v. Henderson, 1939, 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 applying to the powers of the court under section 139, Civil Code, to grant permanent support, or as indicating that would be a proper judgment in the instant case.

Appellant's third and final contention is that section 142 of the Civil Code compels the reversal of these allowances. 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. Respondent disputes the factual basis of the argument and also appellant's legal conclusions.

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, 170 P.2d 670. 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 those urged by respondent. Our previously stated conclusion that the order constituted an abuse of the discretion entrusted to the trial court by section 137 requires a reversal.

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

SHINN, Acting Presiding Justice.

WOOD, J., and KINCAID, J. pro tem., concur.

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