Leiden v. Hudson

Opinion

THE COURT.

*

A former husband appeals from that portion of the order entered December 29, 1977, which decrees that he owes to his former wife, respondent herein, “as arrearages of child support the following amounts for the described periods: a) for the year 1960 — $350.00; b) for the year 1961 — $1,115.00; [and] c) for the year 1962 — $1,200.00.” The order further states that former wife “is entitled to recovery of the arrearages due beyond the period of ten years pursuant to [Code of Civil Procedure section] 685.”

Code of Civil Procedure section 681 provides in pertinent part: “The party in whose favor judgment is given may, at any time within 10 years after the entry thereof, have a writ or order issued for the execution or enforcement of the judgment.” It is clear that under Code of Civil Procedure section 681, a former wife is entitled to enforce her right of

[75]

execution upon any installments of child support that have accrued within 10 years of the date of her application for a writ of execution. This right is not subject to the defense of laches, nor can the amount be modified, and the only discretion the court has in granting such a writ of execution as to accrued installments is to condition issuance of the writ on noncompliance with an order to discharge accumulated arrearages.

(Szamocki

v.

Szamocki

(1975) 47 Cal.App.3d 812, 818 [121 Cal.Rptr. 231].)

Code of Civil Procedure section 685 provides in pertinent part: “In all cases the judgment may be enforced or carried into execution after the lapse of 10 years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of Section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion. This section does not limit the jurisdiction of the court to order issuance of such writ prior to the lapse of said 10-year period in cases where the party in whose favor judgment is given is not entitled to a writ under Section 681 of this code. [H] Judgment in all cases may also be enforced or carried into execution after the lapse of 10 years from the date of its entry, by judgment for that purpose founded upon supplemental proceedings