Bryant v. Bryant

GRIFFIN, J.

On July 15, 1941, an interlocutory decree of divorce was entered in favor of defendant, cross-complainant and' appellant, ordering plaintiff, cross-defendant and respondent to pay her $60 per month for the support of four minor children of the parties. No apportionment or allocation of the support money to the respective children was indicated in the order, and no payments were made after the year 1941. On November 14, 1956, defendant filed her affidavit alleging these facts, and claims that from October 15, 1948, to November 13, 1956, she received no payments from plaintiff and there is due from him, within the dates of October 15, 1948, to December 15, 1955, the sum of $5,160. On November 23, 1956, by minute order, the judge ordered that execution issue in said amount, based upon said affidavit. Subsequent executions were issued thereon to different counties and levy was made upon plaintiff’s property. The record discloses that on December 5, 1956, an order to show cause was issued by said court ordering plaintiff to appear on December 12th to show cause why execution should not issue in said amount. The court’s minutes show "Motion Granted.’’ Thereafter, on March 1,1957, a motion to set aside and quash the execution was made by plaintiff, alleging by affidavit that the affidavit filed by defendant on November 14, 1956, in support of her

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order for execution was false and untrue in that defendant did not have physical custody of said children during the period in question

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that some were in institutions during this time and not supported by defendant; and that some had reached their majority. The whereabouts of the children during the time in question is set forth in detail. It further recites that both plaintiff and defendant have remarried, and alleges the sum claimed due was not due or owing by plaintiff to defendant. In defendant’s reply affidavit, after substitution of attorneys, she “repents” the allegations of her affidavit in many respects and concedes that several of the children were not in her custody during the time indicated in her affidavit, and that some had arrived at their majority. But she opposed the motion to quash the execution. A hearing was had and the court set aside the execution and denied plaintiff’s motion to modify the existing support order.