Rall v. Lovell

[508]

MUSSELL, J.

Defendant appeals from a summary judgment for plaintiff in an action on a judgment rendered in a divorce action in the State of Montana.

It was alleged in the amended complaint, filed December 7, 1949, that plaintiff is the former wife of defendant and was plaintiff in a divorce action against defendant brought in the State of Montana; that the decree rendered therein provided “that the defendant pay to the clerk of the court as and for the support and maintenance of certain minor children, Kenneth M. Lovell, a son, Marjorie Lovell, a daughter, and Jno. Stanley Lovell, a son, the sum of $40.00 per month until further order of this court, or until said minors reach their majority”; that as of June 1, 1949, after deducting certain payments made by and on account of the defendant, the sum of $4,000 was owing and unpaid on said judgment; that Jno. Stanley Lovell is still a minor and that the other two children have reached the age of majority. Judgment was prayed for in the sum of $4,000, interest and costs.

Defendant, in his answer, admitted the rendition of the Montana decree and alleged that he had paid the sums for which he had been given credit by plaintiff and had paid an additional sum of $20 on February 1, 1949. He then denied the allegations of the amended complaint not expressly admitted to be true and alleged that any cause of action of plaintiff was barred by the provisions of subdivision 1, section 336 of the Code of Civil Procedure as to any and all sums of money due or payable under the decree more than five years prior to the commencement of the action; that during said five-year period he had paid not less than the sum of $800 as required by the Montana decree; that during the five years immediately preceding the commencement of this action only one child of the parties, to wit Jno. Stanley Lovell, was at any time under the age of majority. Defendant then alleged that a petition had been filed in the Montana court requesting it to construe its judgment and to adjudge that said judgment and decree provided for the payment of the sum of $13.33% for each child per month, a total of $40 for all three children during their minority, and that when each of said children reached the age of majority or became emancipated or was not under the care of the plaintiff, the amount to be paid by the defendant was then reduced by the sum of $13.33% per month per child; that the said petition is still pending and undetermined before said court; that both of the parties hereto made their appearance before said court in the pro