Moniz v. Moniz

DEVINE, J. pro tem.

*

The parties in this ease are the same persons as those in

Moniz

v.

Moniz, ante,

p. 527 [298 P.2d 710], but their positions are reversed, the husband being appellant herein, and the wife, respondent. The earlier opinion sets forth the facts of the struggle of the parties for the custody of their children. Following the several proceedings that are related in that opinion, the husband made certain motions, described below, all of which were “denied without prejudice” by minute order, and from that order, the husband appeals.

Motion was made by the husband to allow, as an offset to the amounts due to the wife, the expenses of the husband in his successful efforts to regain custody of the children, a sum of $3,942.56.

It is our conclusion that appellant was not entitled on motion to modify, to have a setoff for his expenses, and that the court was correct in denying the motion and, by doing so without prejudice, leaving the subject open to an independent action, if appellant decides to commence such an action. If, on the one hand, he has such a cause, it should be set forth in an action, which is the ordinary proceeding for the enforcement of a right. (Code Civ. Proc., § 22.) The complaint will thus be subject to test by demurrer and the whole proceeding will be governed by all the rules of law pertaining to civil actions. If, on the other hand, appellant does not have a valid cause of action, arising from an obligation or an injury (Code Civ. Proc., § 25), he cannot elevate his claim to the status of a setoff, which would be tantamount to a judgment against the original judgment creditor, his wife. Appellant’s arguments are, that the court had inherent

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continuing supervisory power over its decree, and may modify it by allowing the setoff as a matter of justice, and, second, that there is statutory authority for the modification under the provisions of section 138 of the Civil Code.

Appellant does not contend that the payments required by the property settlement agreement and by the interlocutory decree of divorce which adopted that agreement, were in the nature of alimony. The agreement itself states that the amounts payable were “not in payment of support and maintenance of the wife,” and appellant makes no argument that the decree did not provide for instalment payments of a division of property. A decree adjusting the property rights of the parties and not making an allowance by way of alimony, is not subject to modification without the consent of the parties.