Minor v. Minor

BRAY, P. J.

Defendant appeals from an order refusing to dissolve an attachment.

Question Presented

May a writ of attachment issue for unpaid installments in a property settlement agreement ?

Record

The complaint upon which the writ of attachment was based, alleges that the parties were formerly husband and wife; that on September 25, 1957, the parties entered into an agreement in which among other things plaintiff agreed to waive her claim to alimony in the divorce action then pending, and to past due support payments, and defendant would pay plaintiff $10,000 within 15 days and “the balance of Nine Thousand ($9,000) "Dollars’’

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payable at the rate of $175 per month, commencing October 24, that thereafter the same day plaintiff secured an interlocutory decree of divorce which provided that the community property, other than household goods, be awarded to defendant “out of which’’ defendant shall pay to plaintiff $10,000, payable $1,000 in 15 days, and the balance of $9,000 at $175 per month commencing October 24. Defendant did not make payments on time but after an attachment was made and other proceedings had, and at the time of filing suit, the situation was that the installments due on February 24 and March 24, 1958, were unpaid; that defendant had refused to comply with the contract, had repudiated it and on many occasions stated that he had no intention

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of paying any further sums. For a second cause of action, the complaint alleges in addition to the matters above set forth that defendant owns a certain jewelry store and three-quarters interest in another jewelry store ;■ that these stores are defendant’s only assets and sources of income; that defendant has told plaintiff he intends to sell both stores, take the proceeds and make his residence in Kansas, thereby defeating plaintiff’s rights under the contract and leaving plaintiff without an adequate legal remedy. Plaintiff prays for $8,275 and for an injunction restraining defendant from disposing of said property. Plaintiff’s affidavit for attachment alleged that defendant was indebted to her in the sum of $8,275 “upon an express contract for the direct payment of money, to wit: written contract and judgment entered thereon.” Defendant answered, admitting nonpayment of the February and March installments, alleging that financial problems prevented him from doing so, and denying repudiation of the contract or intention to sell his property and leave the state. Defendant-moved to discharge the attachment, claiming that the complaint shows that the writ of attachment was improperly issued in that the complaint shows that only a small portion of the amount claimed is due.