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District Court of Appeal, Fourth District, California.


Civ. 3616.

Decided: July 19, 1946

John B. Molenaar, of Chula Vista, for appellant. Harry C. Clark, of San Diego, for respondent.

This is an appeal from an order which fixed the amount of money unpaid by defendant under the terms of a final decree of divorce which required him to pay to plaintiff $50 a month towards the support of their two minor children. The order is denominated a judgment and counsel for defendant makes much of this. However, it is clear that it is nothing more than an order fixing the amount in which defendant is in default under the terms of a prior final judgment. The misnomer of the instrument cannot change its character.

The parties were married in 1925. There were two children the issue of the marriage who were both minors at the time of the orders here in question. On November 6, 1931, plaintiff obtained an interlocutory decree of divorce which awarded her custody of the children and required defendant to contribute to their support. These provisions were continued in effect in the final decree of divorce which was rendered October 18, 1933. There has been no modification of either of these decrees and as far as we are advised the provision for the payment for the support of the minors is in full force and effect.

On September 8, 1945, plaintiff filed her affidavit which in substance stated that during the five years preceding that date, there was unpaid, under the decree, the sum of $2925, which was $50 per month for the entire period of five years excepting the last three months when $25 a month was not included as the minor son had been drafted into the Army. He was discharged for physical disability the following November. On September 8, 1945, the trial court made an ex parte order fixing the amount of the unpaid support money at $2925. There was no order directing execution to issue.

There is no showing that defendant had notice of these proceedings and his counsel states he was in ignorance of them until about November 29, 1945, which we will assume to be true.

On December 7, 1945, defendant filed his notice of motion to vacate the order of September 8, 1945. This was his first appearance in the action, he having made default in the action for divorce.

The motion was heard on January 22, 1946, on affidavits and on the oral evidence of the parties. The motion was denied and this appeal followed.

Defendant argues many questions which can have no possible bearing on the issues before us here so we will not burden this opinion with mention of them further than to say we have considered them and find no merit in them.

Defendant maintains there was an agreement between the parties that he would pay $24 per month towards the support of the children and no more; that he paid this sum which was accepted by plaintiff in full satisfaction of his obligation; that this amounted to an accord and satisfaction. This argument is based on the testimony of defendant which was contradicted by plaintiff. This presents the familiar picture of a conflict in the evidence which was resolved in favor of plaintiff in the trial court. This is conclusive of the matter here, as conflicts in the evidence are questions for decision of the trial judge.

Defendant argues laches of plaintiff as a bar to her collection of the unpaid support money. Plaintiff testified to many demands on defendant both in person and by letters for payments of the amounts due under the decree. She also consulted two district attorneys in an effort to force defendant to make up the delinquencies. Defendant admitted being interviewed by an investigator from a district attorney's office. This is sufficient to support the conclusion of the trial judge that plaintiff had not been guilty of laches.

Defendant argues that the son had been supported by others than plaintiff until about 1939; that he had been given property which had been sold for $1600; that a guardian had been appointed for him; that the son had worked and supported himself; that plaintiff had remarried and that her second husband had provided the support for the two children in amounts not covered by the $24 per month and the earnings of the boy.

Plaintiff testified that when her son was born he was taken directly from the hospital to the home of her grandparents where he lived until their death; that this was with defendant's knowledge and consent; that after the separation she contributed what she could to his support though these contributions were small; that after the death of her grandparents the boy came to live with her and her husband where he lived for almost six years prior to the hearing of the motion. He worked for plaintiff's husband, part time.

Plaintiff's grandparents deeded the boy their home in Palm City in San Diego County. After their death a guardian was appointed who took charge of the property and sold it for $1600 upon terms of nothing down and instalments of $25 per month which had accumulated to a sum less than $400 in a bank account. The letters of guardianship are not in the record but from plaintiff's testimony it would seem reasonably clear that the guardianship was of the minor's estate and not of his person.

The fact that the boy was in part self-supporting and had a small amount of property would not relieve the father from contributing to his support. Howe v. Howe, 206 Cal. 1, 272 P. 751. Such earnings are relevant only as a guide in making or modifying orders for support. Rosher v. Superior Court, 9 Cal.2d 556, 71 P.2d 918. The remarriage of the mother does not relieve the father from his duty to support his children. Sec. 139, Civil Code; Avila v. Leonardo, 53 Cal.App.2d 602, 128 P.2d 43.

Defendant argues that the order in question here is void as it was made ex parte and he had no notice of the hearing and no knowledge of the order for more than two months after it was made. He points to Rule XIV of the Superior Court of San Diego County which provides in part as follows: ‘Every order obtained ex parte from a Judge of the Court must be served upon the attorney of the adverse party and filed with the Clerk within two days after it has been obtained or it shall be void.’

A court cannot require the impossible. As defendant had not appeared in the action, he had no attorney upon whom service could be made. Under these circumstances the following provision of Section 1014 of the Code of Civil Procedure should control: ‘But where a defendant has not appeared, service of notice of papers need not be made upon him unless he is imprisoned for want of bail.’

The power of the Superior Court to determine the amount unpaid on a judgment or order which requires a father to support his minor children, cannot now be questioned. Shields v. Shields, 55 Cal.App.2d 579, 130 P.2d 982; Cochrane v. Cochrane, 57 Cal.App.2d 937, 135 P.2d 714.

The order is affirmed.

MARKS, Justice.

BARNARD, P. J., concurs.

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