Rankins v. Rankins

STEPHENS (Jess E.), J. pro tem.

This is an appeal from an order made after judgment. The facts, as they appear from the clerk’s transcript and particularly from the affidavits therein, may be briefly stated as follows:

Plaintiff, Leola Rankins, brought an action seeking custody and support of the minor child of herself and defendant Oscar Rankins, and was awarded judgment ordering said defendant to pay the sum of $20 per month for the support of the minor. Defendant became delinquent in his payments and execution issued for $978. Rankins is (or was at that time) a professional prizefighter, and the sheriff levied upon his share of the receipts of a fight amounting to $709.72. Defendant filed affidavits claiming exemption under section 690.11 of the Code of Civil Procedure and setting forth facts to support his claim that the money represented earnings for his personal services rendered within the preceding thirty days, “and necessary for the use of affiant and his family residing in this state and consisting of his wife, Ethel Rankins, and affiant, Oscar Rankins, and wholly supported by affiant.” Defendant’s affidavit also asserts that out of his receipts for each fight he has incidental costs to pay for trainers, sparring partners and seconds amounting to $234, and that he was about to engage in another fight in connection with which he would have to expend $209 before he receives any further income. Plaintiff asserts in her reply affidavit that defendant’s alleged divorce from her is void because he did not have the necessary legal residence in Illinois, where it was obtained, and that therefore Ethel Rankins is not his legal wife and not a member of his family entitled to his support. She also presents affidavits indicating that the statement of defendant Rankins, sworn to on November 5, 1941, to the effect that he needs $209 to prepare for a coming fight, is false, because on November 3rd he voluntarily tendered to the athletic

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commission of this state his notice of retirement from prizefighting and had his boxing license canceled.

Upon the hearing in the matter of the exemption claim the court made the following minute order: “It is ordered that all money now held by the sheriff under execution in excess of $250 be released to the defendant, and that said $250 be paid to the plaintiff.”

The first question to be determined is whether or not the exemption provided for in Code of Civil Procedure section 690.11 is available to defendant as against execution issued upon a judgment for the support of his minor child. In the case of