Brown v. Brown , 206 Cal. 7 ( 1928 )

THE COURT.

This appeal was submitted upon an order to show cause, no respondent's brief being on file and none having been presented or filed pursuant to said order. The action was for divorce. The cause was tried upon its merits. At the conclusion of the trial the court made its findings of fact and conclusions of law in the plaintiff's favor, wherein it awarded her the custody of the minor children, and in so doing directed the defendant to pay to the plaintiff for the support of said children the sum of $60 per month "subject to the further order of this court to modify, diminish or increase the allowance as the needs of said children may require." The trial court in a further finding directed an allowance of alimony to plaintiff in the sum of $40 per month "until the 1st day of January, 1928, on which last-named date the payment of said alimony for the support of the plaintiff shall forever cease." The plaintiff appealed from this latter order as to alimony which was in terms carried into the interlocutory decree. The appeal is taken from the judgment-roll alone and is based solely upon the ground that the limitation which the trial court imposed upon the payment of alimony to the plaintiff was one which it had no power to make. There is no merit in this contention nor in this appeal based solely thereon.[1] The discretion of the trial court to award or refuse to award alimony in a divorce action is one which is to be exercised in view of the evidence presented in each particular case. In this case no evidence is presented, the appeal being upon the judgment-roll. We must therefore assume that the evidence was sufficient to sustain the finding of the trial court, and it is evident that the findings were sufficient to support the judgment.

The judgment is affirmed.