Smalley v. Smalley

MONROE, J. pro tem.

*

In August, 1954, the parties, being then husband and wife, entered into a property settlement agreement. In this agreement it was recited that proceedings were then pending for the adoption of the minor children of the parties by their maternal grandparents. By the agreement the wife waived all right to support and alimony and it was further provided: “The parties agree that they have been possessed of certain community property which has hereto

[375]

fore been divided between said parties, and the husband agrees that he will pay the wife the sum of $3,000 by way of property settlement, to equalize the wife’s interest therein; said sum to be paid at the rate of $50 per month. ...” Thereafter, on December 7, 1954, an interlocutory judgment of divorce was entered, adjudging that plaintiff husband was entitled to a divorce; approving the property settlement agreement; ordering the payment of $3,000 in the manner agreed; finding that the children had been adopted by their grandparents; and that the court had no further jurisdiction to make any further awards with reference to the minor children.

In October, 1958, upon application of the defendant wife, the court ordered the issuance of a writ of execution in the sum of $2,196.61 principal, plus attorney’s fees and interest. The plaintiff husband moved to quash the execution upon the ground that subsequent to the interlocutory judgment he had been discharged in bankruptcy by the United States District Court for the Southern District of California. Upon proof that the bankruptcy proceedings had been regularly pending, that the defendant had been listed as a creditor and had received notice of the proceeding, and that discharge had been issued, the court held that the debt was thereby discharged, and quashed the execution. The defendant appeals from that order.

The appellant earnestly contends that the property settlement agreement should be construed as an agreement for her support and that therefore it is not a debt dischargeable under the bankruptcy law. In support of this contention a number of decisions from other states are cited. However, the matter has been determined by the courts of California and the decisions from other states are not persuasive.

It is true, as held in