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

Josephine PRIMM, Plaintiff and Appellant, v. Ernest J. PRIMM, Defendant and Respondent.

Josephine PRIMM, Plaintiff and Respondent, v. Ernest J. PRIMM, Defendant and Appellant.*

Civ. 20671, 20931.

Decided: January 17, 1956

Willis Sargent, Syracuse, N. Y., and Sidney H. Wyse, Pasadena, Cal., for plaintiff Josephine Primm. Hanna & Morton, Los Angeles, for defendant Ernest J. Primm.

By the proceedings in the court below plaintiff sought to modify the provisions of the interlocutory decree of divorce between the parties so as to increase the amount which the defendant by the divorce decree was obligated to pay for the support of the five minor children of the parties. The trial court (Judge Kauffman, presiding, he also presided at the trial of the divorce action), entered its order denying plaintiff's application. No findings of fact were made. From this order plaintiff appeals.

After the entry of the aforementioned order plaintiff made application for an order requiring the defendant to pay her certain monies for attorney's fees and costs in order that she might prosecute her appeal. This application was granted (Judge Clarke presiding), and from the order requiring him to pay $1,000 attorney's fees and not to exceed $1,128 for plaintiff's costs on appeal, defendant appeals.

Each appeal is brought here on a separate record and briefs. Both appeals will be disposed of in this opinion.

Plaintiff's Appeal

The parties have five minor children, ranging in age (at the time of the order appealed from) from 11 to 16 years. The two youngest children, girls, are twins. In June of 1951, an interlocutory decree of divorce was entered, by the terms of which plaintiff was granted the custody of the minor children except for certain designated periods during each year, defendant being given custody during those periods, and defendant was ordered to pay plaintiff for the support of the minor children $11,000 annually, payable in installments of $1,000 on the first day of each month except the first day of July. On June 25, 1952, a final decree of divorce was entered which by reference incorporated the provisions of the interlocutory decree as to child support. The defendant has remarried, the plaintiff has not.

Plaintiff asserts that the trial court abused its discretion in refusing to grant any increase in the amount which defendant is obligated to pay for the support of his children.

We have concluded that the trial court's order, being contrary to the undisputed facts, exceeds the bounds of reason and therefore was an abuse of the court's discretion. Kyne v. Kyne, 70 Cal.App.2d 80, 160 P.2d 910; Hall v. Hall, 42 Cal.2d 435, 442, 267 P.2d 249; Makzoume v. Makzoume, 50 Cal.App.2d 229, 123 P.2d 72; Berry v. Chaplin, 74 Cal.App.2d 669, 169 P.2d 453. There is no question here of conflicting evidence but only of the reasonableness of the order as based upon the unconflicting evidence.

The provisions of the decree of divorce, modification of which was sought in this proceeding, reads in part:

‘That the custody of the children of the parties hereto, said Plaintiff and Defendant (hereinafter referred to as ‘the parties hereto’ or as ‘the parties to this action’), to wit: Joan M. Primm, Gary E. Primm, Judith L. Primm and Janet J. Primm, and Joyce P. Primm, is awarded to the Plaintiff until further order of this Court, for the entire period of each year, except for the following periods:

‘(a) Six weeks of each year, commencing on the 15th day of June, 1951, and on the 1st day of July each year thereafter;

‘(b) One-half of the Christmas vacation period;

‘(c) One-half of the Easter vacation period; one-half of Christmas Day; and one-half of Easter Sunday;

‘(d) The first week-end of each calendar month, from Friday afternoon to the following Sunday evening, commencing with the first week-end after the entry of this Interlocutory Judgment; provided that if the first weekend of any calendar month should fall within the Easter vacation period, then the provisions with reference to such period, and with reference to Easter Sunday, shall prevail. * * *

‘The custody of the said children is awarded to the Defendant for the following periods of each year:

‘(a) Six weeks of each year, commencing on the 15th day of June, 1951, and on the 1st day of July each year thereafter;

‘(b) One-half of the Christmas vacation period;

‘(c) One-half of the Easter vacation period; One half of Christmas Day; and One-half of Easter Sunday;

‘(d) The first week-end of each calendar month, from Friday afternoon to the following Sunday evening, commencing with the first week-end after the entry of this Interlocutory Judgment; provided that if the first weekend of any calendar month should fall within the Easter vacation period, then the provisions with reference to such period, and with reference to Easter Sunday, shall prevail. * * *

‘The Defendant is ordered to pay directly to the Plaintiff the sum of $1,000.00 per month, except for the month of July each year, for the support and maintenance of said children, until further order of the Court.

‘The first of said payments shall be made on the first day of August following the entry of this Interlocutory Decree; and subsequent monthly payments shall be made on the first day of each succeeding month thereafter, except during the month of July of each year.

‘Said payments shall be used to provide the necessities of life for said minor children, including food, clothing, transportation, laundry, utilities, rent, taxes, recreation, music lessons; salaries of cooks, maids, gardeners and nurses, if any; and related household expenses, and other incidental expenses attendant upon the support, education and maintenance of said minor children. * * *

‘The defendant is ordered to pay, in the ordinary and usual course of business, all necessary dental and medical bills which may be contracted for the care or treatment of said minor children, or any of them, until further order of this Court. The term ‘medical bills' is defined as including bills for the services of doctors of scientific medicine and bills for X-Ray or other laboratory work, or other supplemental facilities of such doctors, but does not include payment for services of Christian Science practitioners.’

The evidence received in the court below we believe demonstrates beyond question that the trial court should have modified the interlocutory decree so as to increase the amount awarded thereby for child support. This evidence establishes either by stipulation or uncontradicted evidence these facts:

The standard of living which the appellant has maintained and seeks to maintain (we do not here include expenditures for automobiles, horses and kindred matters which appellant sought to have provided in the future) is not beyond that contemplated by the interlocutory decree and certainly not beyond that which respondent has ability to provide and in fact does provide during the time the children are in his physical custody.

The decree expressly provides that respondent shall provide, among other things, transportation, recreation, music lessons, cooks, maids, gardeners, nurses and other incidental expenses. These are mostly things connected with a relatively high standard of living. It was admitted at the oral argument that the house furnished by appellant for the children was not beyond their station of life and that a maid and gardener were required. The respondent admits his ability to pay the amounts requested by appellant and the evidence shows his net income after Federal income taxes was in excess of $50,000 during the years 1953 and 1954. During the summer vacation when the children were with him he expended $1,800 per month for house rental alone and it is fair to assume that the standard of living the maintained for them was proportionate.

Since the entry of the interlocutory decree of divorce there has been an appreciable increase in the cost of living and this court will take judicial notice that that increase at the time of the hearing in the court below exceeded 3.6 per cent. (Federal Reserve Board Bulletin, Vol. 41, No. 9, Sept. 1955.) The evidence as to the needs of the children and the amounts expended by her for their support was given by the plaintiff and substantiated by abstracts made by her accountant from her books of account (Plaintiff's Exhibits 1A and 1B).

The defendant offered no evidence to contradict the evidence offered by the plaintiff, either as to the needs of the children or the amounts expended by the plaintiff. His testimony was limited to certain brief statements as to his own income and his criticism of certain additional expenditures which the plaintiff desired to make, some of which were in the nature of luxuries.

In substance, plaintiff testified that as the children were at the time of the hearing more than three years older than at the time of the decree, their needs and activities had increased. All were healthy, active and well-adjusted children.

Following the divorce of the parties plaintiff attempted to rent an unfurnished house in San Marino, that being the place where the parties had resided for a number of years, and found that the rents for an unfurnished house would run from $300 to $350 a month, and even at those rentals found nothing satisfactory. She then purchased, out of her own funds, a home for herself and children, but this did not contain sufficient room to house the children satisfactorily, as it was necessary to house her son in a room built on as an addition to the garage where it was difficult to supervise his homework and his sleeping hours. This home did not contain any servants' quarters. In the spring of 1953, the plaintiff located a home on Chaucer Road in San Marino, which contained five bedrooms, three baths and a small maid's room and bath. This home she purchased for the sum of $40,000, utilizing her equity in the home first purchased and $19,000 realized from a loan secured by her on collateral, as she could secure a lower interest rate on such a loan than one secured by a purchase price mortgage or trust deed. She spent an additional $5,000 in improvements upon the house purchased. It has proved a satisfactory home for the family. She furnished the home with furniture which was her separate property. The payments of principal and interest on the collateral loan have been $150 a month since the purchase of the Chaucer Road property.

The plaintiff owns an automobile which she uses to a great extent for chauffeuring the children here and there. This automobile was purchased by turning in one which had been awarded to her by the interlocutory decree of divorce as her separate property, and she agreed to pay in addition, $2,200. The plaintiff has a net income, after federal taxes, of about $6,600 per year.

After the entry of the interlocutory decree the plaintiff opened a separate bank account which she entitled ‘Household Account.’ In this account she deposited all amounts received from the defendant, plus such additional amounts from her own income as were necessary to maintain the household of herself and children. From this account all the household expenses were paid but nothing was paid for the purely personal expenses of the plaintiff, such as beauty shop, clothing, jewelry and other personal items. The total expenditures from this account in the year 1953 amounted to $16,831.50. Of this amount defendant contributed the sum of $11,000 and plaintiff the balance. These expenditures are itemized in detail in plaintiff's exhibits and are summarized in plaintiff's brief, and as respondent makes no objection to that summary, we adopt it here. It is as follows:

While defendant does not dispute the accuracy of this account or the necessity for or reasonableness of the expenditures, he insists that as many of the items which go to make up the account include payments upon plaintiff's personal indebtedness, and others include expenditures for items which the plaintiff enjoyed as well as the children, without their being any allocation between the children and their mother, the evidence fails to establish the need of a further allowance for the support of the children.

Before examining respondent's contentions in detail, it seems to us proper to state certain principles that should have governed the trial court and must govern us in this matter.

The duty of child support is primarily that of the father. Metson v. Metson, 56 Cal.App.2d 328, at page 333, 132 P.2d 513; Fox v. Industrial Accident Comm., 194 Cal. 173, at pages 180–181, 228 P. 38. The fact that the mother has property or income is immaterial so long as the father has ample income to support the children. Dickens v. Dickens, 82 Cal.App.2d 717, at page 722, 187 P.2d 92. The wife may indirectly benefit from the allowance for the support of the children, even though she is not entitled to alimony. Bailey v. Superior Court, 215 Cal. 548, at page 554, 11 P.2d 865; Buchanan v. National Trust & Savings Co., 79 U.S.App.D.C. 278, 146 F.2d 13, at page 15. The father's duty to support the children does not end with furnishing the mere necessities of life if he is able to afford more. Children are entitled to be supported in a style and condition consonant with the position in society of their parents. Bailey v. Superior Court, supra; Kyne v. Kyne, supra, 70 Cal.App.2d 80, at page 83, 160 P.2d 910; Berry v. Chaplin, supra, 74 Cal.App.2d 669, 169 P.2d 453; Wong v. Wong Hing Young, 80 Cal.App.2d 391 at page 395, 181 P.2d 741.

With these principles in mind we will examine respondent's contentions in detail.

The first item of the account which defendant asserts shows an expenditure for the benefit of the plaintiff without any allocation of the amount between that which was for her benefit and that of the children is Item 7, Car Expense. This item, it is true, is the installment payments made upon the automobile which the plaintiff uses principally for the transportation of her five children. It is true that in 1953 she used this in an attempt to augment her income by engaging in the real estate business. This work she had abandoned at the time of the hearing. It is further true, however, that the down payment upon this automobile had been made by plaintiff by turning in an automobile which had been awarded to her as her separate property at a value of $1,500 by the interlocutory decree. (See Parcel 19, Finding 11.) It is further true that transportation was a necessary expense in the maintenance of the children according to their station in life, and is one of the specific items which the interlocutory decree provides should be borne by the plaintiff and which the court at that time took into consideration in fixing the amount which should be contributed by the defendant. There being no attack upon the reasonableness of the charges for transportation, the fact that the plaintiff used the amounts of the installment payments on the balance due on her car as the criterion for her charge can make no difference. What we have said also applies to the fact that plaintiff charged against the household account the insurance upon the automobile. If she was to have custody of the children and was obligated to care for them, including transporting them, she could not be expected to undertake that burden without the protection of insurance.

The next item under attack is Item 1, House Payments. Under the terms of the interlocutory decree the defendant was obligated for rent of the housing facilities which were to be furnished to the children. The plaintiff in her accounting did not claim anything for rent, as such, but charged against the household account the amounts which she was required to pay each month in reducing the personal loan that she had secured to pay the difference between the amount contributed by her in the purchase of the Chaucer Road property and the purchase price. This balance was less than the down payment on the purchase price, even though no consideration is given for the amounts expended by her for the improvements of the property. The court would have to close its mind to actual facts to treat this item of the account as a payment for the personal benefit of the plaintiff, in view of the admitted facts that in her account she made no charge for the rent as such and that if she had rented adequate premises to house the children the amount she would have had to expend would have been more than twice the charge she made. This item must be considered a charge for rent and its reasonableness is self-evident. It need not be allocated between the plaintiff and the children for two reasons. In the first place, as she was charged with the care of the children it is to be expected that she would live on the same premises as they and the fact that she receives an indirect benefit is no reason for charging her with a share of the rent. In the second place, plaintiff had invested in the premises more than $26,000 and for the use of this investment she made no charge but contributed it to the common fund. Certainly this is more than her fair portion of the rent.

What we have just said applies with equal force to Item 4, Public Utilities, and Item 5, Gardener.

The next item which defendant attacks is Item 10, Food, including Milk. The amount of this item for the year 1953 was $2,463.77, certainly a most reasonable amount to buy food to sustain seven people (including a part time maid), but defendant says that the plaintiff has not segregated that portion of the sum mentioned which paid for the food she ate, and that portion which paid for the food and milk consumed by the five children and the maid the plaintiff employed to aid her in the care of five children. The account rendered by the plaintiff is surprisingly detailed, and this court cannot ignore nor should the trial court have ignored this item in determining the amounts necessary for the support of these children because of the lack of allocation of it between the plaintiff and the children. Certainly the trial court could have made a proper allocation, and it seems to us that that suggested by the plaintiff in her brief is a proper one, that is, one-sixth of the entire expenditure.

Defendant next attacks Item 13, Bookkeeping. The present proceeding would seem to amply justify the plaintiff's need to employ a bookkeeper so that she might render to the father of the children a proper accounting for the moneys he has paid her.

Defendant also attacks Item 14, Life Insurance. This item, amounting to $1,025.87, is for insurance which plaintiff took on her life for the protection of the children after their father had remarried. Plaintiff concedes that this charge did not fall within the purview of the order made for support of the children.

The last item attacked by the defendant includes, we presume, although it is difficult from his brief to be certain, portions of the amounts included in Item 8, Miscellaneous, and Item 22, Miscellany, as well as Item 19, Balboa Bay Club Dues. With the exception of the Balboa Bay Club Dues, these expenditures were for flowers, newspapers, toiletries, Easter candy, and birthday gifts from one child to the other, and one related to ‘Father's Day.’ Respondent fails to point out why any of these were not proper expenditures ‘attendant upon the support, education and maintenance of these five children’ and on their face they are proper ones.

The record shows, without conflict, that all five children are interested and proficient in swimming and other water sports. It further shows that defendant has purchased for their use at Balboa two small boats. It does not seem unreasonable that during the nearly eleven months of the year that they are with their mother they should have recreation similar to that furnished by the defendant during the summer. This plaintiff provided them by the club membership. The cost of recreation was one of the items specified in the interlocutory decree to be borne by the defendant.

The schedule of expenditures set forth above is for the year 1953, which was the last full year before the hearing in the court below. The record shows that the expenses for 1954, up to the date of hearing, were, as to certain items and particularly that of household help, greater than in 1953. It is unnecessary for the purposes of our decision here to go into those details. It suffices to say that excluding the items of life insurance, club dues, and charging the plaintiff with a full one-half of the cost of food, the remaining expense which was properly incurred on account of the children exceeded the amounts paid for that purpose by the defendant under the provisions of the divorce decree by more than $3,500. This demonstrates to us that under the circumstances here the denial of any increase in the amount defendant is obligated to pay for the support of his minor children was arbitrary and an abuse of discretion. We do not mean to hold or direct that the order in question should be modified by increasing the amount of the child support by the sum of $3,500. We only hold that the trial court abused its discretion in not allowing some increase and it is for that court to determine on a rehearing whether the amount of that increase should be more or less than the sum mentioned.

Respondent asserts that the trial court was not bound by the uncontradicted testimony of Josephine Primm which was corroborated by her accounts. He cites Williams v. Williams, 80 Cal.App.2d 28, 181 P.2d 110, and Carson v. Vinding, 130 Cal.App.2d 652, 279 P.2d 604. These cases are not controlling here. The appellant's testimony was neither evasive, contradictive, equivocating nor inherently improbable, nor does respondent attempt to point out anything in her testimony which was of such a character as to cast doubt upon her veracity and thus warrant the trial court in putting aside all of her testimony, including that which was corroborated by the entries in her books.

There being no evidence to dispute or contradict the evidence offered by the plaintiff, that evidence could not be arbitrarily disregarded. Dobson v. Dobson, 86 Cal.App.2d 13, at page 14, 193 P.2d 794; Mantonya v. Bratlie, 33 Cal.2d 120, at page 127, 199 P.2d 677; Wirtz v. Wirtz, 96 Cal.App.2d 171, at page 176, 214 P.2d 839, 15 A.L.R.2d 1129.

A great deal of evidence was received at the trial concerning and the arguments in the briefs are addressed to, the claims of the plaintiff that the defendant should furnish in the future the funds necessary to enable her to maintain (not build) a swimming pool upon the premises where she and the children are housed, give them swimming lessons, purchase a horse for their use, take them on trips in connection with their participation in school athletics, etc.

It is unnecessary for us to discuss this evidence other than to say that the trial court should, in reconsidering this matter, determine whether or not expenditures of the character we have indicated are proper ones, considering the children's station in life, the manner in which they have lived, and the ability of the defendant to pay.

Orders of this kind must always look not only to the present but to the foreseeble future. Dimon v. Dimon, 40 Cal.2d 516, at pages 524–525, 254 P.2d 528. They can always be conditioned so that the father is not required to make payments for future needs until such time as it is necessary or proper to incur them.

Inasmuch as this matter must be remanded to the trial court for further proceedings, the conclusions we have reached make it unnecessary to examine the question raised by plaintiff as to whether or not findings of fact are required in a proceeding such as this.

Defendant's Appeal

Defendant appeals from the order of the trial court made as heretofore stated ordering him to pay $1,000 as attorney's fees on appeal; $628 costs on appeal which includes the actual cost of the Clerk's and Reporter's Transcripts on appeal and the actual cost of any briefs not to exceed $500.

Defendant does not question the reasonableness of the amounts fixed by the order of the trial court and raises no question as to his ability to pay them. His sole contention is that inasmuch as plaintiff had substantial resources of her own there was no necessity for the order in question. He relies on decisions which had to do with appeals in which decrees of divorce or grants of alimony were involved, and cites Dietrich v. Dietrich, 41 Cal.2d 497, 261 P.2d 269; Loeb v. Loeb, 84 Cal.App.2d 141, 190 P.2d 246, and Fallon v. Fallon, 86 Cal.App.2d 872, 195 P.2d 878. These cases are not in point here.

The plaintiff does not appear here in her individual capacity, but in a representative one on behalf of the children who are the real parties in interest. Metson v. Metson, supra, 56 Cal.App.2d 328, at page 331, 132 P.2d 513; Dickens v. Dickens, supra, 82 Cal.App.2d 717, at page 720, 187 P.2d 91. It is therefore immaterial whether the plaintiff had funds sufficient to enable her to prosecute the appeal. Defendant's obligation is not to the plaintiff but to his children and it is for their benefit that the appeal is prosecuted.

The order of the court awarding attorney's fees and costs is affirmed, plaintiff (respondent) to recover her costs on appeal. The order denying plaintiff's application for modification of the provisions of the interlocutory decree as to child support is reversed with directions to the trial court to determine, in accordance with the views hereinbefore expressed, such additional amounts as may be reasonably necessary for the support of the minor children of the parties and modify the interlocutory decree accordingly. Plaintiff (appellant) shall recover her costs on appeal, provided that any amounts received by her under the order made by the trial court as to the payment of those costs shall be applied pro tanto to the satisfaction of the judgment for costs, given herein.

NOURSE, Justice pro tem.

SHINN, P. J., and VALLEÉ, J., concur.

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