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District Court of Appeal, Second District, Division 1, California.


Civ. 16213.

Decided: May 21, 1948

Krag & Sweet, and Donald O. Krag, all of Alhambra, for appellant. W. H. Sullivan and Kenneth K. Scott, both of Los Angeles, for respondent.

This appeal is taken from two orders made by the Superior Court of Los Angeles County. The first was entered July 1, 1947, denying a motion by plaintiff for the issuance of a writ of execution under Section 685 of the Code of Civil Procedure, to satisfy certain unpaid installments for a period prior to five years immediately preceding, and accruing under a decree of divorce which awarded the custody of two minor children to plaintiff with provision that defendant should pay $40.00 per month for their support.

The second order was entered July 11, 1947, granting a motion made by defendant to recall an execution theretofore issued for the five-year period immediately last passed, pursuant to the provisions of Section 681 of the Code of Civil Procedure.

By her affidavit supporting her motion made under Section 685 of the Code of Civil Procedure, plaintiff averred that on April 27, 1932, she was granted an interlocutory decree of divorce from defendant wherein the foregoing order was made for support of the minor children whose custody was awarded to her. That certain payments were made pursuant to said decree and an order to show cause made and determined prior to the entry of the interlocutory decree. That at the time she filed her motion under Section 685 of the Code of Civil Procedure there was an accrued unpaid balance of $5,361.00. It is then averred ‘That plaintiff has been unable prior to this time to find any property of the defendant in this State which might be applied to the satisfaction of this judgment; that more than five years have elapsed since the entry of said judgment; that there is now in this State property of the defendant subject to execution which may be seized to satisfy this judgment.’

Defendant filed an affidavit in opposition to the motion wherein he alleged that in the foregoing divorce action he was, pursuant to an order to show cause, ordered to pay plaintiff the sum of $12.50 per week for her support and the support of the minor children, $125.00 attorneys fees and $15.00 court costs, as set forth in the plaintiff's affidavit; that on May 28, 1931, he was cited to appear and show cause why he should not be adjudged in contempt of court for disobeying said order. That after the service on him of this order to show cause he made all payments up to and beyond the 22nd day of June, 1931 by payment of the sum of $161.50 on account of support and maintenance, $15.00 court costs, and the further sum of $130.00, making a total of $306.50. That subsequently the order to show cause was ordered off calendar.

That on July 21, 1931, plaintiff and defendant by and through their respective counsel, entered into a stipulation whereby defendant would withdraw his answer filed in the divorce action and the plaintiff would proceed with the action as a default matter. That on the said 21st day of July, 1931, ‘The plaintiff and defendant entered into a property settlement agreement in writing, both being at the time represented by their respective counsel, which said agreement provided, among other things, that the defendant should convey all of his right, title and interest in the community property, then owned by the parties hereto, to the plaintiff.’ Then follows a description of the real property, and the further averrment that ‘By the terms of said agreement the plaintiff agree to give defendant a credit of $2,200.00 on account of moneys then due or to become due under and by virtue of that certain order for support and maintenance of the plaintiff and the said minor children, made on the said 2nd day of April, 1931, which said $2,200.00 credit made the payments of this defendant under said order for a period of 184 weeks, or approximately 3 1/2 years in advance, a copy of which property settlement agreement is hereto attached, marked Exhibit ‘A’ and made a part hereof.' Examination of the property settlement agreement introduced in evidence shows that the same was unsigned.

It is then averred that on July 21, 1931, in answer to said agreement, the defendant executed and delivered to the plaintiff a deed whereby he conveyed to her all his right, title and interest in and to the real property above referred to.

It is then alleged in defendant's affidavit that from and after the date of the property settlement agreement and execution and delivery of the aforesaid deed and up to May 12, 1947, ‘or more than 15 years thereafter, the said plaintiff made no demand whatever on this defendant for payment of any sum or sums due and payable on said order or judgment, although for a number of years after said 21st day of July, 1931, this defendant operated a bakery wagon in the vicinity where plaintiff resided, and sold bakery products on the same street on which plaintiff was residing, and on numerous occasions this defendant went to plaintiff's home and asked her to let him see his children, but she would in each instance refuse him admittance to her home, and defendant would only get to see his children at such intervals when they would be playing with other children on the sidewalk or in the street.’

It is then averred that the only demand ever made by plaintiff for the payment on said order or decree of divorce was made by a letter dated May 12, 1947, a copy of which is attached to the affidavit. That at no time after the aforesaid 21st day of July, 1931, was defendant ever ‘cited into court for failure to make payments on said former order or judgment, nor at any time was any demand whatever made on him, although the plaintiff knew his address for many years. That affiant had been informed that the plaintiff had remarried many years ago, but he had no knolwedge of the Interlocutory Decree of April 27th, 1932, wherein the plaintiff obtained an order requiring him to pay the sum of $40.00 per month for the support and maintenance of said children, nor was any certified copy of said order, or any copy of same, or any letter or demand whatever, ever served on him, and his first knowledge of said decree and order was obtained on or about the 3rd day of June, 1947, at which time the Sheriff of Los Angeles County levied an execution, obtained upon application to the Honorable Caryl Sheldon, Judge of the Superior Court of the State of California, in and for the County of Los Angeles, on the 2nd day of June, 1947, in the sum of $2400.00, on property now owned by this affiant’. It is then alleged that said execution ‘purports to cover the period from the 29th day of May, 1942 to about the 12th day of June, 1947, or approximately five years last passed.’ It is then averred that the property upon which execution was levied was purchased by defendant on June 11, 1941, more than five years and nine months prior to the issuance of the execution on June 2, 1947. That said execution ‘purports to cover the period of five (5) years prior to the date of said execution; that plaintiff and judgment creditor, by reason of the recordation of the said deed on August 19, 1941, aforesaid had constructive notice, but made no attempt to have execution issued for more than five (5) years and nine (9) months after the same was recorded as aforesaid.’

It is then averred that for the fiscal years 1941, 1942, 1943, 1944, 1945, and 1946, ‘the above described real property was assessed in this defendant's name on the tax rolls of the County Assessor's Office of Los Angeles County, showing this defendant's address as 703 East 92nd Street, Los Angeles, California, and from which the said plaintiff and judgment creditor could have ascertained that this defendant and judgment debtor owned real property subject to execution for more than five (5) years and nine (9) months prior to the levy of the execution on June 3, 1947, and for the same time prior to the application for execution herein.’

It is then averred that by reason of failure of plaintiff for more than fifteen years to demand or attempt to have execution issued, defendant has been greatly prejudiced in that ‘this defendant would no doubt have made arrangements to pay any delinquencies in monthly installments, but now after he has worked hard for many years last past to accummulate his home, the property heretofore described, and by reason of the fact that some months ago he sustained a severe injury to his back, and is unable to work, to issue and enforce execution against his home, would work great hardship upon him, and would amount to confiscation of his said home.’

It is further averred that at the time defendant entered into the aforesaid property settlement agreement on July 21, 1931, he had been in the United States from Italy for only a few years and at that time ‘did not understand nor speak English very well’ and that he ‘believed that said conveyance was in settlement of all claims of the plaintiff for support and maintenance’. It is then averred in the affidavit that while defendant is willing to contribute to the best of his ability to the support of his minor children, ‘and fully intended to devise his property to them by will’, that plaintiff has failed to exercise diligence in the matter before the court.

To the foregoing affidavit by defendant in opposition to the motion to issue execution, plaintiff filed a counter affidavit in which she alleged that defendant discontinued operation of his bakery truck prior to the entry of the interlocutory decree of divorce and subsequently thereto stated to plaintiff that he had no moneys with which to support her children. That after terminating the operation of the bakery route up until approximately one year ago, ‘affiant was wholly unaware of the whereabouts of the defendant or as to any property belonging to him’. It is then averred that plaintiff ‘consulted with a deputy of the District Attorney's Office in Los Angeles County, who advised her that unless she could prove that defendant had an income, there was nothing she could do to collect the judgment for support. That your affiant did nothing further by reason of the information supplied by the said Deputy District Attorney, in the year 1933.’

It is then averred that in the year 1944 defendant ‘called at the home of one Milli Costa and stated to said party that he wanted to know the whereabouts of your affiant and his two children, as he then wanted to contribute some money towards their support.’

Finally, with reference to the foregoing property settlement agreement referred to in defendant's affidavit, it is alleged by plaintiff that she ‘has no recollection of signing a property settlement agreement.’

In support of his motion for an order to recall and set aside the execution issued June 2, 1947, covering the period commencing May 29, 1942, and ending May 29, 1947, defendant filed an affidavit which, except for an averment that the minor children of the parties were then of the age of seventeen and eighteen years, respectively, and were capable of earning their own support, contained averments similar to those set forth in his affidavit hereinbefore referred to.

In a proper case, execution will issue for the enforcement of installment decrees for alimony or support under Section 681 of the Code of Civil Procedure, in accordance with Section 1007 of the Code of Civil Procedure which provides that enforcement of such decrees or orders may be effected by execution in the same manner as if the decree or order were a judgment. Cochrane v. Cochrane, 57 Cal.App.2d 937, 938, 135 P.2d 714, 715. And, in the case just cited it is held that ‘even though the decree was entered over five years before, execution will issue under Sec. 681 for installments falling due within the five-year period’, but, that for installments accuring prior to five years before the issuance of execution, the writ can only issue under Section 685 of the Code of Civil Procedure.

Giving consideration first to plaintiff's motion for the issuance of a writ under Section 685 of the Code of Civil Procedure, it was held in Lohman v. Lohman, 29 Cal.2d 144, 148, 173 P.2d 657, 659, that with reference to such an order, ‘It may only be made if, during the five years following entry of judgment, the execution creditor exercised due diligence in locating and levying upon property owned by the debtor, or in following available information to the point where a reasonable person would conclude that there was no property subject to levy within that time. And even if the court is satisfied as to the diligence of the creditor in this respect, it may deny its process if the debtor shows circumstances occurring subsequent to the 5-year period upon which, in the exercise of a sound discretion, it should conclude that the creditor is not now entitled to collect his judgment.’

A court cannot be said to have abused its discretion unless it be established that in the exercise thereof, the court has exceeded ‘the bounds of reason,—all the circumstances before it being considered.’ Kosloff v. Kosloff, 67 Cal.App.2d 374, 379, 154 P.2d 431, 434.

We are satisfied that under the recent decisions of the appellate tribunals of this state (Butcher v. Brouwer, 21 Cal.2d 354, 132 P.2d 205; Beccuti v. Colombo Baking Co., 21 Cal.2d 360, 132 P.2d 207; Hatch v. Calkins, 21 Cal.2d 364, 132 P.2d 210; Lohman v. Lohman, supra; Mills Organization, Inc., v. Shawmut Corporation, 29 Cal.2d 863, 179 P.2d 570), no sufficient showing of diligence was made herein to justify the issuance of execution under Section 685 as to those installments which fell due more than five years before the motion for issuance of execution was made, and so far as such installments are concerned, the order of the trial court was manifestly correct.

A different question is presented with regard to the installments falling due within five years of the date of the motion. Under Section 681 the plaintiff was entitled to execution for their satisfaction, and the determination of the plaintiff's right to enforce payment of amounts due not more than five years before the date on which the motion was made rests upon different principles. However, the courts have held that issuance of execution even as to such installments may, upon a sufficient showing, be denied. Cochrane v. Cochrane, supra, 57 Cal.App.2d at page 939, 135 P.2d at page 715.

In Lohman v. Lohman, supra, 29 Cal.2d at page 150, 173 P.2d at page 660, the Supreme Court stated:

‘Although issuance of execution upon a judgment requiring monthly payments may be denied upon equitable grounds, proof that the installments have accrued within five years establishes a prima facie right to execution and the burden is cast upon the judgment debtor to establish facts justifying an order denying the writ.’

We are convinced that in the instant case the defendant met and overcome the burden cast upon him by facts stated in his affidavit, which justified the order of the court denying issuance of the writ on equitable grounds. At no time did plaintiff resort to the courts to obtain an order to show cause why defendant should not be adjudged in contempt of court for failing to comply with the support order contained in the decree of divorce, although that course was open to her. Her affidavits fail to disclose why she did not take this course, or what efforts, if any, she made to locate any property belonging to defendant during the interim of fifteen years.

Plaintiff relies mainly upon the claim that she was advised by a deputy district attorney that there was nothing she could do unless she could prove that defendant was possessed of property or income, yet she made no efforts to locate either property or income of which he might be possessed. Nor is there any showing that she consulted at any time with her attorney or applied to him for advice or relief.

By his counter-affidavit, defendant showed that he was the record owner of property in Los Angeles County and paid taxes thereon during the years 1941 to 1946, inclusive. That the tax rolls of Los Angeles County showed his address.

While averring in her affidavit that she was unable ‘prior to this time to find any property of defendant in this state which might be applied to the execution of this judgment’, this was a mere conclusion, unsupported by any facts from which the trial court could conclude that she had exercised due diligence.

In Mills Organization, Inc. v. Shawmut Corporation, supra, 29 Cal.2d at page 865, 179 P.2d at page 571, we find the following:

‘There is a further reason why the order should be affirmed. We have held that ‘even though the creditor may have satisfied the court that he has proceeded with due diligence to enforce his judgment under section 681, the court may still deny him its process if the debtor shows circumstances occurring subsequent to the five-year period upon which, in the exercise of a sound discretion, it should conclude that he is not now entitled to collect his judgment.’ Butcher v. Brouwer, 21 Cal.2d 354, 358, 132 P.2d 205. Defendant's reliance on the assurance that the judgment would not be enforced against him, the failure to make any demand on him for payment of the judgment, the lapse of time and change in his position in relation to his principals, and the prejudice resulting therefrom, were sufficient to bring the case within this rule.'

Where, as here, the facts show with certainty that, had the judgment creditor exercised even slight diligence, such as securing an order to show cause, in re contempt, a search of the tax collector's and assessor's records, following the entry of the decree of divorce, such diligence would have disclosed the existence of property owned by the judgment debtor, as well as his address, it cannot be said that the trial court abused its discretion in making the orders appealed from. Added to this are the circumstances shown as occurring subsequent to the five-year period, which also support the conclusion of the court in the exercise of a sound discretion, that the plaintiff is not now entitled to collect her judgment.

The orders appealed from are, and each of them is affirmed.

WHITE, Justice.

YORK, P. J., and DORAN, J., concur.

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