Millard v. Millard

California Court of Appeal Feb 13, 1951 No. Civ. 14542Published

Before: Dooling

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Holding. The court affirmed the denial of a motion to quash an ex parte writ of execution for child support installments accruing within five years of the application, holding that such execution is a matter of right. The court further held that conflicting evidence regarding an alleged oral agreement to waive support payments must be resolved in favor of the trial court's findings.

Issues

Whether a writ of execution for child support installments accruing within five years of the application may be issued ex parte despite the judgment being over five years old.
Whether the trial court's resolution of conflicting evidence regarding an alleged oral agreement to waive support payments should be upheld on appeal.

Disposition. Affirmed in part and dismissed in part.

Quotations verified verbatim against the opinion

“a writ of execution will issue under Code of Civil Procedure, section 681 as a matter of right for instalments accruing within the five-year period on an ex parte application showing that such instalments have not been paid.”

“We must assume in support of the challenged orders that the trial judge found the facts most favorable to plaintiff”

DOOLING, J.

Plaintiff procured a final decree of divorce from defendant in. 1942 by the terms of which plaintiff was awarded the custody of a daughter, Barbara, and defendant the custody of a son, Craig. The decree ordered defendant to pay plaintiff $50 a month for his daughter’s support. Payments were made in full under this decree to January, 1946J but no payments were made thereafter. In October, 1949, plaintiff served and filed a notice of motion for execution on these unpaid instalments, supported by plaintiff’s affidavit. Before this motion was heard plaintiff made an ex parte application for execution and execution was ordered issued upon this application on November 4, 1949. Defendant opposed the noticed motion and after a hearing the court on November 14, 1949, ordered execution to issue with the following qualification: “that said Order for Issuance of Execution be stayed until a final adverse determination be made as to the validity of an Ex Parte Order made herein for issuance of execution under Section 681, C.C.P. on November 4th, 1949.”

Defendant moved to quash the order for execution made ex parte and this motion to quash was denied on December 13. From the order for issuance of execution of November 14 and the order of December 13 denying his motion to quash defendant has appealed. Since the order of November 14 is by its own terms stayed until the order of November 4 is invalidated it will not be necessary to consider the order of November 14 further if we determine that the order of December 13 refusing to quash the writ of execution issued November 4 .must be affirmed.

Defendant attacks the ex parte order of November 4 on the ground that the judgment being over five years old execution could only issue after a noticed motion supported by a showing of diligence under Code of Civil Procedure, section 685. Since all the instalments for which execution issued accrued within five years of the date of the ex parte application the rule announced in

Lohman

Lohman,

29 Cal.2d 144 [173 P.2d 657];

Wolfe

Wolfe,

30 Cal.2d 1 [180 P.2d 345]; and

Di Corpo

Di Corpo,

Millard v. Millard

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DOOLING, J.

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