In Re Marriage of Pallesi

[426]

Opinion

FRANSON, J.

Statement of the Case and Facts

On July 8, 1975, the superior court ordered the respondent-husband to pay to appellant, attorneys for the wife, the sum of $250 on account of attorneys’ fees plus actual costs incurred in representing the wife in the pending marriage dissolution proceedings, payable at the rate of $50 per month.

On December 23, 1975, appellant attorneys filed a declaration and request for the issuance of a writ of execution wherein it alleged that respondent had paid only $150 of the $250 ordered to be paid on account of attorneys’ fees; that the amount of actual costs incurred on behalf of the wife were $79.50 and that there was then owing and unpaid on the pendente lite award the sum of $179.50. The trial court ordered the issuance of a writ of execution in favor of appellant in the sum of $179.50.

Thereafter, appellant had respondent’s wages levied upon by the Sheriff of Fresno County. Respondent promptly filed with the sheriff an earnings exemption claim under Code of Civil Procedure section 690.6. By his affidavit, respondent alleged that all of his wages were exempt from execution because the debt underlying the writ of execution was not incurred for the common necessities of life in that “said claim was incurred for legal fees incurred by wife at the start of a divorce case which did not go through and wife had paid her attorney at the beginning of the matter $ 150.”

The parties apparently had reconciled before the writ of execution was levied on respondent’s wages.

On January 13, 1976, appellant filed a counteraffidavit to respondent’s claim of exemption and moved for a determination of the validity of respondent’s claim of exemption under Code of Civil Procedure section 690.50.

On June 14, 1976, the trial court adjudged that respondent’s claim of exemption should be allowed in full on the theory that the reconciliation

[427]