LOHMAN v. LOHMAN (1945)

On this appeal plaintiff contends that the trial court abused its discretion when it denied her motion for the issuance of execution to enforce a judgment for alimony.

Plaintiff obtained a final decree of divorce from Theodore G. Lohman on April 16, 1929. Thereafter Mr. Lohman remarried. He died on February 4, 1944. The motion for the issuance of execution is dated September 5, 1944. The second wife is the executrix of Mr. Lohman's will, which made no provision for plaintiff.

Before plaintiff was divorced from Lohman she made a property settlement with him providing for the payment to her of $5,500 in cash and the further sum of $10,000, of which $2,000 was payable on March 27, 1930, $2,000 on March 27, 1931, and $6,000 on March 27, 1932. These sums were evidenced by three promissory notes. Lohman further agreed to pay her the sum of $150 per month for her support. This property settlement was approved by the court and made a part of the interlocutory decree.

In the affidavit which she filed in support of her motion for the issuance of execution plaintiff stated that Lohman had not paid to her the sums evidenced by the three promissory notes and had not paid her more than $125 per month from the period beginning with February 2, 1935. She attempts to excuse her delay in seeking enforcement of the decree by stating that she did not desire to harass her former husband, in whom she had confidence; that from time to time she had requested payment but that Lohman had assured her that ‘she would get her money’. She states further in her affidavit that he had left ‘a large estate, including a large wholesale plumbing establishment, with adequate sums for the purpose of discharging this debt’. She relies upon a letter dated April 5, 1932, a copy of which she attached to her affidavit and which is as follows: ‘The reason I am writing this to you is that you can use this letter in the event I do not meet my obligation. I will go on record and say you have been very considerate and used good judgment in not forcing payment on the last note. It would only have meant one result at the present time we are doing the best we can hoping a change will come soon at one time we employed sixty or more with a fair profit and now only twenty on one half time we have cut wages from top to bottom 20% to keep the overhead down we took a heavy loss in 1931 and from all indication it will repeat in 1932. I am not telling you this as a hard luck story it is simply telling you facts as they are. I have been very weak in some things but I can assure you I will play square with you in a financial way, if you give me a chance.’

Under the ruling in Butcher v. Brouwer, 21 Cal.2d 354, 132 P.2d 205, a party seeking to obtain the issuance of execution more than five years after the entry of a judgment must show to the court that he has 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. Plaintiff has not shown any diligence whatever in enforcing her judgment. In the property settlement agreement she was given a lien upon defendant's corporate stock having a value of $20,000. She makes no pretense that she did not know of the amount of the property owned by defendant or of his ability to make payments to her. A fair inference, on the other hand, may be drawn from her affidavit and the counter affidavit of Zalla Lohman that plaintiff was at all times aware of her ability to enforce the payments of sums due her by taking legal action. She relies upon her confidence in her former husband and her desire not to harass him and upon the letter written in 1932. In refusing the issuance of the execution the trial court in exercising its discretion doubtless took into account the fact that in the letter of April 5, 1932, Lohman referred to the fact that plaintiff had been considerate in not enforcing payment ‘on the last note’. The letter naturally leaves the impression that the other two notes had been paid.

Plaintiff insists, however, that regardless of the question of her right to the issuance of execution for payments due more than five years before Lohman's death, she had the right to have execution issued for the payment of $25 per month during the last five years before Lohman's death, this sum being the difference between the amount which she claims she actually received for her support and the sum awarded by the decree. Plaintiff relies upon Cochrane v. Cochrane, 57 Cal.App.2d 937, 135 P.2d 714, 715. In that case no counter showing was made, as in the present case, to the showing made by the plaintiff. The Cochrane case does not go so far as to hold that the issuance of execution under section 681 of the Code of Civil Procedure covering the last five years may be demanded as a matter of right, but it refers to the rule that execution may be refused where ‘some contingency has arisen under which she has no longer any right to exact alimony.’

Unquestionably some discretion is reposed in the trial court when such a motion is presented. In the exercise of its discretion the trial court doubtless took into consideration the fact that plaintiff had waited until after the death of Lohman to claim that she had received $125 per month for her support instead of $150 per month, and that subdivision 3 of section 1880 of the Code of Civil Procedure prohibits her from giving testimony of the facts occurring before Lohman's death. Manifestly a claim against the estate would have been rejected by the executrix, and in any subsequent litigation plaintiff would be confronted with the rule prohibiting her from testifying concerning facts necessary to establish her claim. We find no abuse of discretion on the part of the trial court.

The orders appealed from are affirmed.

W. J. WOOD, Justice.

MOORE, P. J., and McCOMB, J., concur.