SWEELEY v. SWEELEY (1945)

This is an appeal from an order directing plaintiff to pay to defendant for the support of herself and the minor child of the parties $225 per month pending the trial of a divorce action instituted by plaintiff on the ground of extreme cruelty.

The essential facts are these:

At the time of the hearing of the order to show cause upon which the order appealed from is predicated the evidence disclosed that defendant had in her possession $5,800.48 in cash which was derived from sale of the home and furniture of the parties hereto. Such money the parties had agreed should be held to provide a fund for the education of their child. The evidence also disclosed that plaintiff's average monthly income was $1,508.71 and that his average monthly expenses were $450, leaving an average net monthly income to plaintiff of $1,058.71. The plaintiff conceded that the sum of $50 per month was a reasonable and necessary amount for the support of his child.

The trial court in addition to the order appealed from made an order restraining defendant from disposing of the cash in her possession except for the cost of litigation until after the hearing of the case on its merits.

This is the sole question necessary for us to determine:

Did the trial court abuse its discretion in making an order awarding defendant $225 per month as alimony pendente lite?

This question must be answered in the negative and is governed by these pertinent rules of law:

1) The trial court may in its discretion award a wife alimony for her support during the pendency of an action for divorce. (Section 137, Civil Code.)

2) It is not an abuse of discretion for the trial court to award a wife alimony pendente lite if the evidence discloses she has in her possession a small amount of non-income producing property. (Westphal v. Westphal, 122 Cal.App. 379, 383 et seq., 10 P.2d 119.)

Applying the foregoing rules to the facts in the instant case it appears that the only property defendant had in her possession was non-income bearing, and pursuant to an agreement of the parties the cash which constituted the bulk of said property was held for the education of their minor child. Therefore, since the husband's net monthly income averaged $1,058, clearly there was not any abuse of discretion in the trial court allowing the defendant, pending the trial, $225 per month for her support and the support of the parties' minor child.

Tremper v. Tremper, 39 Cal.App. 62, 177 P. 868, is not applicable to the facts of the present case for the reason that in such case the wife failed either by affidavit or by testimony to show the amount necessary for her support. In the instant case defendant by affidavit and oral testimony showed specific needs and the amount necessary for her provision.

Turner v. Turner, 80 Cal. 141, 22 P. 72, is likewise not in point here for in such case the wife possessed income producing property which income was in excess of that of her husband.

White v. White, 86 Cal. 212, 24 P. 1030, Stewart v. Stewart, 156 Cal. 651, 105 P. 955, and Mudd v. Mudd, 98 Cal. 320, 33 P. 114, are factually distinguishable from the present case and therefore are not of assistance to us.

Shopiro v. Shopiro, —— Cal.App.2d ——, 153 P.2d 62, relied upon by plaintiff and cited as authority for his position that the trial court abused its discretion, is not an authority for the reason that the Supreme Court granted a hearing after the decision of the District Court of Appeal and before decision of the Supreme Court the case was dismissed. Therefore the case has no value as an authority or precedent. (In re Estate of Kent, 6 Cal.2d 154, 156, 57 P.2d 901.)

For the foregoing reasons the order is affirmed.

McCOMB, Justice.

MOORE, P. J., and WILSON, J., concur.