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District Court of Appeal, First District, Division 2, California.


Civ. 15896.

Decided: March 25, 1954

Gendel & Raskoff, Los Angeles, for appellant. Francis W. Collins, Dist. Atty., David J. Levy, Deputy Dist. Atty., Martinez, for respondent.

Appeal from a judgment of the Superior Court based on the Old Age Security Law.

The County of Contra Costa, through the action of its Board of Supervisors, granted and gave $75 a month for the months of May, June and July, 1951, to the defendant's mother, Alta Hachenberger, under the provisions of the Old Age Security Law. Div. 3, Chapter 1, Welfare and Institutions Code. Defendant resides in this State and is the adult child of the recipient of Old Age Security benefits. Plaintiff contributed a total of $225 to the recipient. Pursuant to Section 2224 of the Welfare and Institutions Code, the Board of Supervisors of plaintiff county directed the District Attorney to proceed against the defendant.

Trial was held on December 29, 1952, with the court sitting without a jury. The court found, among other things, that on the 28th day of May, 1951, the Board of Supervisors of plaintiff county found that the net monthly income of defendant was $666.67 and that said Board found that defendant was pecuniarily able to pay for the support of recipient, Alta Hachenberger, an amount of $75 a month. The court found that during the months of May, June and July, 1951, the defendant had a monthly income of $660 a month consisting of support and alimony payments from a former husband. Out of this income she was purchasing a home, buying a 1950 Chrysler automobile, employing a gardener at $20 a month, and accumulating surplus money sufficient to loan her ex-husband in excess of $1,000. At the time of the trial, the defendant was still receiving the same income of approximately $660 a month. On the 18th day of February, 1953, judgment in the amount of $225 was ordered, which judgment was duly made and entered on the 3rd day of March, 1953. This appeal is taken from that judgment.

The parties stipulated to the formal allegations of the complaint to the effect that the law had been complied with and the money had been paid by the plaintiff. Defendant took issue as to defendant's liability on her ability to pay and whether the funds that she had were legally liable or subject to being ordered paid.

The facts stipulated to are as follows: Defendant, Frances Lasky, is the adult child of Alta Hachenberger. During the months of June, July and August of 1951, after due application had been made by Alta Hachenberger for benefits under the Old Age Security Law, aid was granted pursuant to this law by the County of Contra Costa to Mrs. Alta Hachenberger in the amount of $75 a month for said months of June, July and August. After August 1951, recipient Alta Hachenberger moved to the County of Alameda. The total amount of funds provided by plaintiff, County of Contra Costa, to the recipient, Alta Hachenberger, amounted to $225. On May 28, 1951, the Board of Supervisors of plaintiff county ordered defendant to contribute an amount of $75 a month to recipient. A statement of responsible relative of applicant under Old Age Security Law was properly made and filed by defendant, Frances Lasky, with the Board of Supervisors of the plaintiff county.

Defendant showed that she had no separate income other than the alimony that she received from her former husband. During the year 1951, the defendant had income of $9,637.81. As stipulated by the parties, such figure is correct. Defendant has one child. On September 1, 1951, defendant loaned $1,292.19 to her former husband for which she received a three-year note. During the year 1951 defendant paid income tax in the amount of $2,115.50. Defendant was lending money to her former husband to aid in the payment of premiums on insurance policies that had a maturity value of $38,000. Defendant sent her minor child to a private school at a cost of $800. Effective in September of 1952, defendant terminated sending the child to private school and started sending her to public school. Automobile installment payments of $88.75 a month on an original loan of $2,662 have been paid up to the time of the trial. In November and December of 1951 defendant paid medical expenses in excess of $1,700.

Appellant contends that alimony and support money received from a former husband can not be considered in connection with the daughter's ability to support her mother and that the evidence is insufficient to show that she had the ability to contribute to the support of her mother in the sum of $75 a month for June, July and August of 1951.

It is our view that the source of income has no relation to a child's duty to support an indigent parent. This duty arises from § 206 of the Civil Code and is based on ability, not necessarily on income. In the basic law, as stated in § 206 of the Civil Code, there is no reference to income and the duty of the child is based solely on the extent of ability.

Section 2181 of the Welfare and Institutions Code applies the responsibility fixed by the Civil Code to adult children of old age security recipients and § 2224 of the same code sets out the procedure to be followed by a county to recover from a proper responsible relative who has the ability to contribute. See Garcia v. Superior Court, 45 Cal.App.2d 31, 113 P.2d 470; Kelley v. State Board of Social Welfare, 82 Cal.App.2d 627, 186 P.2d 429.

Section 2224 of the Welfare and Institutions Code gives a right of action to the county if the person receiving aid has within the state a spouse or adult child pecuniarily able to support him. Upon the direction of the designated authorities, recovery may be had of such portion of the aid advanced as the relative is able to pay. Los Angeles County v. La Fuente, 20 Cal.2d 870, 129 P.2d 378.

This present action was brought pursuant to § 2224 of the Welfare and Institutions Code. As we have already stated, the question of pecuniary ability to pay is the deciding factor of responsibility. In our opinion the evidence before the trial court was ample to support the findings of fact and conclusions of law of the court.

Appellant relies on the New York case of Application of Dunaway, 174 Misc. 735, 22 N.Y.S.2d 69. That case is not here in point. There the parties were still husband and wife and the question determined under the New York law was whether alimony was income within the meaning of their Public Welfare Law. The question of ability to support was not there considered and no statute such as our § 206 of the Civil Code was involved.

We conclude that the evidence before the trial court supports its finding that appellant had the ability to contribute to the support of her mother in the amount of $75 a month for June, July and August, 1951. Appellant's contention that loans made by her, sending her child to a private school and buying a late model car, created a deficit and showed that she did not have ability to support her mother, are without merit. A person can not relieve himself of responsibility under the statute merely by spending all of his income and by making loans. It is sufficient to fasten responsibility if the evidence discloses ability to contribute to the support of the parent.

In view of the foregoing we find no prejudicial error in the record and the judgment of the trial court under the law and evidence must be affirmed.

Judgment affirmed.

I dissent. This case is not as simple as the opinion of this court would make it appear. The testimony shows without contradiction that the former husband of the defendant and appellant is required by the divorce decree to pay to appellant for her support and that of their minor child an amount which varies with the ex-husband's earnings. The court found that during the period of June, July and August, 1951 (the three months in which the payments were made by the respondent county to appellant's mother) appellant had a monthly income of approximately $660 as support for herself and the minor child consisting solely of alimony, and support and maintenance payments made to appellant pursuant to the decree of divorce. The court further found that with this income appellant was purchasing a home, a 1950 Chrysler automobile, sending her child to a private school, employing a gardener at $20 per month, and during this same period she accumulated surplus money in the amount of $1,400 which she loaned to her ex-husband on a three-year note.

The finding that she accumulated the $1,400 during the three-month period is not supported by the evidence. It is obvious that with her scale of living she did not save $1,400 out of $1,980 in three months.

The criticial question is whether the fact that she had accumulated $1,400 out of the alimony and support payments made by her ex-husband of which she was able to lend him $1,292.12 on September 1, 1951 (the balance had been lent to him previously) supports the court's finding that in June, July and August 1951 she had the ability to pay $75 per month for the support of her mother. Admittedly she had not quite enough money at the time of trial to pay her anticipated income tax and there is no evidence that after lending her ex-husband the $1,292.12 on September 1, 1951 she had any balance available for her mother's support.

In awarding alimony and support money the divorce court must consider the needs of the wife and child and the ability of the husband to pay. Section 139, Civ.Code; Bowman v. Bowman, 29 Cal.2d 808, 811, 178 P.2d 751, 170 A.L.R. 246. The divorced husband may be compelled to pay for the reasonable support of his divorced wife and child, but he is under no legal duty to support his divorced wife's mother. No such duty is cast on a husband even while the marriage relation continues. Grace v. Carpenter, 42 Cal.App.2d 301, 108 P.2d 701.

It seems equally clear that the divorced wife is legally entitled to expend for those purposes the entire amount awarded her for the support of herself and her minor child. If she is compelled by another court to get along on less so as to contribute to the support of her mother not only is the court which compels her to do so redetermining the question of the amount reasonably necessary for her and her child's support and thereby, pro tanto, setting aside the judicial determination of the divorce court that such amounts are reasonably necessary for her support and that of her child, but her ex-husband is by indirection being compelled to contribute to the support of his ex-wife's mother, something that the law cannot compel him to do.

This brings me back to the $1,292.12 which appellant had accumulated and was able to lend her former husband on September 1, 1951. Appellant testified that the former husband's payments under the divorce decree varied with his income and that there were times when he received no income because he is a free lance writer and not constantly working. This was not contradicted in any way. The accumulation of so small an amount as less than $1,300 against such a contingency cannot be held to be unreasonable and it must still be regarded as earmarked for the appellant's and her child's support. Furthermore the $1,292.12 was lent to the ex-husband to enable him to pay the premiums on $38,000 of insurance on his life with their child as the beneficiary. The payments were required of the husband by the divorce decree partly for the maintenance and support of the child. If he dies those payments will cease entirely. $38,000 invested at 4%, which is a high yield in these days for a safe investment, would only bring an annual income of $1,520 per year. As a prudent mother appellant cannot be criticized for an expenditure to secure this amount of protection for her child in the event of the father's death.

It is clear that one court in one decree could not legally compel appellant's ex-husband to support her mother. We are now holding that two courts in two decrees are doing what one court in one decree cannot do. The next logical step would be for some other court to find that the appellant has the ability to support her mother in the future and thus compel her ex-husband to support his ex-wife's mother indefinitely.

On the whole case I am satisfied that the evidence does not support the judgment. The only decided case which at all touches this question supports this conclusion. Application of Dunaway, 174 Misc. 735, 22 N.Y.S.2d 69.

We need not determine in this case whether an unreasonably large accumulation of money or property from past alimony and support payments would render an ex-wife liable for her mother's support. A prudent accumulation, sufficient to meet only a few months' future living expenses or some unexpected contingency (e. g., the appellant testified that her child had had an appendectomy and there was still danger of adhesions) should not be held to do so.

KAUFMAN, Justice.

NOURSE, P. J., concurs.

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