Stuckey v. StuckeyStuckey v. Stuckey
- Reporters:
- , ,
- Before:
- Pierce
Ruth I. Stuckey, granted a divorce, has appealed from that portion of the decree limiting the present award of alimony to $200 a month.
The parties were married November 25, 1932, and separated in May 1962. The divorce action was tried in April 1963. The interlocutory decree was filed July 17, 1963. Thus at the time of the divorce the parties had been married 30 years, 7 months and 22 days. At the time of the divorce the wife was 54 years old. There are no children.
The cause of the divorce: the husband had become enamored with his bookkeeper. He told his wife (with a mutual friend as witness) that she had “picked a lemon” for a husband, that he no longer loved her and was moving out but that he would continue to support her and she would not “be deprived of anything.” Acting upon this declaration, he moved out of the home and commenced depositing $367 a month in the wife’s bank account for her support. This continued for several months.
The husband told the distraught wife she should see a Sacramento psychiatrist whom he recommended. Accepting this advice, she visited the psychiatrist and, returning, informed her husband the doctor “asked me if I had an alternative plan and I said well, I had no relatives or family with whom I could stay and no independent income so the only plan that I have is that I do have a teaching credential . . . and I was going to try to get a job . . . .” After a month she did get a job as a teacher.
Thereafter the couple had another conversation at the home of the friend. (Later at the trial the friend was the wife’s corroborating witness.) During the conversation the husband told the wife he would continue to support her but that now that she had the extra money from teaching she would have “security.” Acting upon Ms promise, the husband continued to deposit $367 to the wife’s account—for three months, July, August, and September.
According to the wife’s testimony, the husband had offered to enter into a written agreement with her covering her support and she had replied: “I said well there is [sic] never been any necessity for any such thing and we have always trusted each other and I have never had to ask you for money and I said forget the writing . . . .”
At the trial it was shown that the husband, who is the manager of the Tuba City Refrigeration Company, received a salary of $12,600 a year; that this salary had increased regularly since his original employment by the company in 1946. The husband also participates in a profit-sharing plan of his employer. He travels sometimes for his firm and is allowed his living expenses when traveling and 15 cents per mile for his automobile. He is covered by social security.
The wife’s “take home” pay as a teacher is $359.60 per month. She possesses a “general secondary” credential. She will not qualify for a ‘ ‘ life diploma ’ ’ until she has been teaching a total of five years (1965) and will be available for a pension only after she has taught a total of 10 years (1970). She is not presently covered by social security.
After the trial, in a memorandum opinion, the trial court observed: “The . . . husband did not present sufficient evidence in court to legally corroborate his ease [sic] of action for divorce. . . .” 1 It found that the wife had and awarded her a divorce on the grounds of cruelty. During the course of the trial the parties had agreed to an equal distribution of the property, some of which was held in joint tenancy. In making this distribution the court awarded to the wife the home and its furniture, a Buiek automobile, a life insurance policy and an endowment policy, $1,100 in cash, and one-half of the securities (mostly mutual fund investments). Evidence regarding the value of the property is unsatisfactory. From the scant proof we do have (aided by current market quotations on the securities) it would appear that the value of the property distributed to the wife may approximate a sum between $39,000 and $42,000.
This is an important factor in decision. Although the appeal is not upon the ground of an inadequate distribution of the property, the wife’s financial position is vital in
The only specification of the Civil Code for an award of alimony is that it shall be a “suitable allowance” “having regard for the circumstances of the respective parties. . . .” (
Regarding the safeguarding of the wife’s financial future, there is an aspect of the alimony problem frequently overlooked and that is the mortality of man. Alimony stops with the death of the husband. It is an actuarial truism that most women outlive their husbands. When divorce precedes the latter event, this can have consequences unfortunate for the grass-become-sod widow—particularly if the husband’s death has been untimely. Generous alimony unbuttressed by any share in the husband’s estate or adequate insurance on his life becomes a will-o-the-wisp. (See the facts stated in
Estate of Fritschi,
60 Cal.2d 367 [33 Cal.Rptr. 264, 384 P.2d 656], and
Fritschi
v.
Teed,
213 Cal.App.2d 718 [29 Cal.Rptr. 114].)
On the other hand, the scope of review by an appellate court of a trial court’s award of alimony is circumscribed. A wide discretion is vested in the trial court (Hall v. Hall, supra, 42 Cal.2d 435, 442). In the very recent case of Nunes v. Nunes, 62 Cal.2d 33 (Nov. 1964) our Supreme Court says, at page 38 [41 Cal.Rptr. 5, 396 P.2d 37] : “Even where an innocent spouse is involved, the granting or refusing of alimony in an action for divorce lies largely in the discretion of the trial court [Citations], Although other triers of fact might have become more generously disposed toward plaintiff, under the circumstances of the present case we cannot find that there has been an abuse of discretion.”
Although we deem the question an exceedingly close one in the ease at bench we similarly have reached the conclusion that the trial court’s alimony award can not presently be disturbed.
Here the wife has present earning power, is apparently in good health, and earns $359.60 per month as a teacher. Her total monthly income with the $200 award of alimony will thus be $559.60 plus the dividends from her securities and interest on her savings account (the total of which is unstated in the record but which is perhaps $700-$800 a year). She has a well-furnished home to live in (and if it is not clear of mortgage we have not been so advised). She has two insurance policies (the extent of the benefits of which are also undisclosed) . The record is silent as to any current extraordinary financial needs (so that we must assume they are the normal ones of a woman of her age and calling).
Equally meager is available information regarding the husband’s ability to support the wife. His salary (gross or take home?) at the time of the divorce was $1,080 per month plus an undisclosed annual bonus. His commitments for living expenses were not brought before the court. There are no children to dilute the husband’s obligation of family support.
Without the assets now possessed by the wife under the court’s community property distribution, we would be com
The judgment appealed from is affirmed. It would be inequitable to require that the wife’s meager estate be depleted further. In the interests of justice it is ordered that the costs of appeal shall be borne by the husband ; also that the trial court shall fix and order payment by the husband of a reasonable fee to the wife’s attorney for his services on appeal.
Friedman, J., and Van Dyke, J., * concurred.
Appellant’s petition for a hearing by the Supreme Court was denied February 10, 1965.
Notes
This is understatement. The husband’s own testimony asserting his grounds for divorce were pieayunish. Attempted corroboration through his sister was even more trivial. We are compelled to view this as a divorce action in which the wife’s only demonstrated fault was to become middle-aged.
Retircd Presiding Justice of the District Court of Appeal sitting under assignment by the Chairman of the Judicial Council.