In Re Marriage of D'Antoni

Opinion

ELKINGTON, Acting P. J.

In a Santa Clara County Superior Court proceeding, in which Theresa D’Antoni (hereafter for reasons as will be seen, first wife) sought to levy execution against community property of her deceased former husband, the court entered judgment adverse to her and she appeals.

During her marriage to Robert S. D’Antoni (Robert), one child was born to them. The marriage was terminated by an interlocutory judgment of divorce, April 27, 1962, and a final judgment of dissolution, February 10, 1970. Under the judgments Robert was ordered to pay $75 child and spousal support each month, “until further order of the Court.”

[749]

Following the final judgment of dissolution Robert married Gloria D’Antoni (sometimes hereafter, second wife). He died December 7, 1977, leaving community property consisting of all or part of a home acquired during the second marriage. The earlier child and spousal support award had never been terminated or modified by the court or otherwise, and Robert had paid “virtually nothing” on account of the award. Second wife, “Gloria D’Antoni [had] filed a Community Property Petition for Determination of Community Property passing to the surviving spouse pursuant to Probate Code § 650 et seq. and for confirmation of community property pursuant to Probate Code § 201, in San Mateo County Superior Court, . . . The San Mateo County Superior Court . .. entered an order finding that ... [the] property ... ‘is community property and passes to Gloria D’Antoni, the surviving spouse ....’”

[Sic.]

In the instant Santa Clara County proceedings, the superior court’s conclusions of law, based upon such facts, follow: “Petitioner is not entitled to a Writ of Execution as prayed for because the community property of the second spouse (Gloria) and Respondent is not liable for the debts of the deceased husband (Respondent) under California Probate Code § 205, except for (1) items of general expense, (2) contracts entered into during the second marriage, and (3) torts committed by the husband during the marriage.

“This debt for back child or spousal support arises neither out of contract nor tort and is therefore not included with the classifications of debts for which the community is responsible under Probate Code § 205. Accordingly, Petitioner, as first wife, has no right of recourse against the community property of the second marriage of respondent.”