Williams v. Williams

Opinion

MOLINARI, P. J.

Defendant appeals from that part of a judgment obtained by plaintiff providing for the revocation of a stay of a writ of execution theretofore obtained by defendant.

Plaintiff wife was granted an interlocutory judgment and decree of divorce from defendant husband on April 26, 1966. The decree provided that defendant was to pay plaintiff $140 alimony and $60 child support monthly. It also awarded a community property apartment house in Martinez two-fifths to plaintiff and three-fifths to defendant, and provided that the trust deed installments on said property should be assumed and paid by the parties in the same proportions.

Following the entry of the interlocutory decree, defendant, under an oral agreement with plaintiff, assumed management and control of the apartment house. During the years 1966 and 1967 the expenditures for the operation and maintenance of the apartment house exceeded the income, the net deficit being the sum of $10,848. This deficit was discharged by defendant’s unilateral payment of taxes, trust deed payments, repairs and improvements.

Defendant made none of the support payments provided for in the divorce decree. This failure was admitted by defendant without explanation or excuse. The total support delinquency amounted to $4,610.90. Plaintiff secured an ex parte order for a writ of execution towards satisfaction of this delinquency. Defendant then filed a motion to stay the writ of execution and obtained a temporary restraining order against its enforcement. Pursuant to an order to show cause the matter came on for hearing at,the conclusion of which the trial court ordered that its prior stay of execution be vacated.

In the proceedings below defendant argued that pursuant to Code of Civil Procedure section 440 plaintiff’s share of the apartment house deficit

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should be set off against her support arrearages. Code of Civil Procedure section 440, in pertinent part, provides as follows: “When cross-demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim could have been set up, "the two demands shall be deemed compensated so far as they equal each other, . . .” On appeal he argues that the support obligation and the apartment house deficit are “demands” compensable within the purview of section 440.