Kress v. Kress

SMITH, J. pro tem.

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This is an appeal from an order denying appellant’s motion to be substituted as a party defendant in place of the deceased defendant in a divorce action. Appellant is the administrator of the estate of the deceased defendant, and appellant sought substitution for the purpose of obtaining a modification of child support payments. The judgment in the divorce case, which had become final, contained a provision for child support until further order of the court or until the child reached his majority. Such provision had been modified once by stipulation before the death of the father. Respondent mother filed in the estate, on behalf of the minor, a claim for such child support payments, which the administrator refused. A suit was brought to establish the claim. Thereupon the administrator made the motion to be

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substituted into the divorce action to enable him to request modification of the child support payments in order to protect the estate from the claim, at least in part, and he appealed when such motion was denied.

The circumstances alleged in the declaration, in support of the motion, to justify the modification are: (l)'the decedent is no longer employed; (2) the child is receiving social security payments charged to the account of decedent; (3) the child has received in excess of $4,500 insurance on the life of decedent; and (4) the mother is employed. Appellant apparently assumes that the second and third items may be established as an offset to accrued claims. Respondent disputes this and contends that the first item also must be disregarded since such fact is true in all cases of death. Respondent then argues that since appellant can accomplish nothing by being substituted, there was no error in denying him substitution.

There might be merit to respondent’s arguments if our problem involved accrued installments only. Section 139, Civil Code, provides in part that child support payments may be modified ‘ ‘ except as to any amount that may have accrued prior to the order.” See also

Parker

v.

Parker,

203 Cal. 787, at page 795 [266 P. 283], holding that while payments may be modified at any time such modification would be prospective only. Appellant and respondent agreed during oral argument that the minor child is 12 years old. Thus we must consider the problem of future installments. Respondent concedes of course that the obligation to pay child support survives the death.