Hale v. Hale

California Court of Appeal May 8, 1935 No. Civ. 5337Published

Before: Coats

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Holding. The court held that it was an abuse of discretion to allow execution for the full amount of a support decree after the wife's remarriage and the children's majority, and remanded the case to limit the execution to the amount due at the time of the wife's remarriage.

Issues

Whether the trial court abused its discretion in ordering execution for the full amount of a support decree after the wife's remarriage and the children's majority.
Whether a defendant is entitled to relief from an execution order if it is inequitable to enforce the full amount of the original decree.

Disposition. remanded

Quotations verified verbatim against the opinion

“The issuance of the execution is within the discretion of the court and its order will not be disturbed unless there has been an abuse of that discretion.”

“To require defendant to be answerable for this full amount palpably effects an injustice.”

“It appears, however, that at the date of the remarriage of plaintiff, there was then due upon the judgment the sum of $2,530. No good reason appears why defendant should not be compelled to pay this amount.”

COATS, J.,

pro tem.

The plaintiff and defendant were husband and wife and were divorced by a final decree of divorce on April 2, 1918. The interlocutory decree was made and entered on March 20, 1917. By these decrees the plaintiff was awarded the custody of the minor children of the marriage, namely, Ezli Hale, hereinafter referred to as Robert Hale, Grace Hale and Earl Hale; and defendant was ordered to pay to plaintiff for the support of herself and said children the sum of $45 per month.

On December 6, 1932, plaintiff presented to the court an affidavit for the purpose of procuring a writ of execution. She states in this affidavit that she has remarried and there is unpaid upon the decree the sum of $5,735. Upon this affidavit the court made an

ex parte

order directing execution to issue. Defendant then moved to vacate said order and to re

[663]

'call the execution, and from the order denying his motion, defendant appeals.

The delinquent payments on which the execution is based covers the years 1921 to 1932, inclusively. On August 18, 1926, plaintiff remarried and is now living with her present, husband. The children became of age on the following dates: Robert in January, 1926; Grace in June, 1928, and Earl in August, 1932. Grace was married in the month of June, 1926, but about three weeks after the marriage separated from her husband and has since lived with her mother.

The court has authority upon

ex parte

application to order the issuance of the execution on a judgment for alimony and support and maintenance of children. Defendant, if he has good cause to show against the issuance of the execution, has his remedy by motion to vacate the order and recall the execution.

(Parker

Parker,

203 Cal. 787 [266 Pac. 283].)

Hale v. Hale

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COATS, J.,

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