McNabb v. McNabb

SCOTT (R. H.), J.

pro

tem.

Defendant appeals from an order for the issuance of an execution to collect unpaid amounts which had been ordered for the support of a minor child, together with interest thereon, and from a further order temporarily restraining him from disposing of his property.

The parties to this action were formerly husband and wife, and at the time of the divorce in 1935 their daughter was less than two years old. The custody of the child was awarded to plaintiff, the mother, with right of reasonable visitation

[625]

to defendant. He was ordered to pay for the support of the child the sum of $40 per month for the first three months and $50 per month thereafter. Plaintiff at that time apparently thought that she should give her attention to the child rather than to attempt to secure employment, and since the payments by defendant were intended to be and were sufficient only for the child it seemed necessary for plaintiff to take the child and return to her parents’ home in Spokane, Washington, which she proceeded to do shortly after securing the divorce. For over five years plaintiff thus lived outside of California. Defendant visited the child three times during this period but failed to respond to a letter from plaintiff suggesting that the child pay him an extended visit. Feeling aggrieved or indifferent because the child was no longer close at hand, he stopped making the payments for the child which had been ordered by the court, but made no application to have the payments discontinued or reduced.

In November, 1940, plaintiff returned to Californiá. She filed an affidavit and, after a court hearing, secured the issuance of an execution under Code of Civil Procedure, section 685, covering arrearages for the last five years only, which the court later extended to include amounts accruing before the five year period. Still later the court amended the order

nunc pro tunc

by adding interest on the amounts theretofore accrued. Defendant was restrained from disposing of his property so as to make effectual the levy thereon when execution was issued.