Espinoza v. Espinoza , 85 Cal. App. 2d 155 ( 1948 )

85 Cal.App.2d 155 (1948)

JOHN R. ESPINOZA, Appellant,
v.
MARY GRACE ESPINOZA, Respondent.

Civ. No. 16351.

California Court of Appeals. Second Dist., Div. Two.

Apr. 23, 1948.

Arthur E. Schifferman for Appellant.

Alex F. Sample and Robert M. Porter for Respondent.

McCOMB, J.

Plaintiff appeals from that portion of a decree of divorce granted defendant on her cross-complaint ordering him to pay $110 monthly for the support of the two minor children of the parties aged 3 1/2 and 5 1/2 respectively.

Viewing the evidence in the light most favorable to defendant (respondent) the essential facts are:

Plaintiff is earning a minimum of $240 per month. In defendant's cross-complaint for a divorce her prayer requested $110 per month for the support of the minor children and herself. Defendant testified as to items of expense necessary for the support of her children which amounted to a sum in excess of $110 per month.

This is the sole question necessary for us to determine:

Did the trial court abuse its discretion in awarding defendant $110 a month for the support of the parties' minor children?

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

[1] First: The amount of an allowance for the maintenance of the minor children of a divorced couple rests in the sound discretion of the trial judge, and in the absence of an abuse thereof such an award will not be set aside on appeal. (Sawyer v. Sawyer, 57 Cal.App.2d 582, 584 [134 P.2d 868].)

[2] Second: In fixing the amount necessary for the support of minor children the trial judge is not limited in a contested action to an amount not exceeding that prayed for in the complaint, but he may award a sum less or in excess of the amount sought in the prayer if such award is sustained by the evidence. (Karlslyst v. Frazier, 213 Cal. 377, 381 [2 P.2d 362].)

[3] Under rule 1, supra, in the instant case it is clear that the trial court did not abuse its discretion in fixing the amount necessary for the support of the two minor children of the parties since, as set forth above, the evidence discloses that plaintiff was earning a minimum of $240 per month and that in excess of $110 a month was necessary for their care and maintenance. Likewise, under rule 2, supra, there is no merit in plaintiff's contention that the trial court erred in allowing defendant $110 per month for the support of the children alone because in the prayer of her cross-complaint she asked for this sum for the support of the children and herself. As hereinbefore stated the trial court was not limited in fixing the award to an amount not in excess of that prayed for in the cross-complaint.

The judgment and order are and each is affirmed.

Moore, P. J., and Wilson, J., concurred.