Nutt v. Nutt

California Court of Appeal Dec 12, 1966 No. Civ. 30274Published

Before: Fleming

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Holding. The court held that a judgment creditor's failure to seek execution within the statutory period is excused when the debtor is absent from the state and lacks assets, rendering efforts to execute futile.

Issues

Whether the trial court abused its discretion in granting a motion for execution 22 years after the original judgment.
Whether a judgment creditor must perform an exhaustive search for assets to satisfy the due diligence requirement when the debtor has no assets in the state.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“Under the circumstances of this ease any generalized attempt to locate and levy upon assets of Carl’s in California would have been throwing good money after bad, comparable to looking for the pot of gold at the end of the rainbow.”

“We conclude that Mary Nutt Busearino’s prior failure to seek a writ of execution against Carl Nutt was excused, that she was not chargeable with a lack of diligence, that the order for execution properly issued.”

FLEMING, J.

Carl Nutt appeals from a 1965 order authorizing execution in an amount of $14,334 in favor of Mary Nutt Buscarino on a 1943 judgment which had ordered him to pay child support of $50 a month. He claims the trial court abused its discretion in granting his former wife’s motion to issue execution on a judgment for the first time after a lapse of 22 years.

In April 1943, in the Los Angeles Superior Court, Mary obtained an interlocutory decree of divorce from Carl, custody of their two children, Carole and Verna, and an order for $50 a month child support. But Carl left California for his former home in Little Bock, Arkansas, and never paid child support, and, according to Mary’s affidavit, she supported Carole and Verna by working as a waitress until each daughter was married. In 1965 Mary sought to execute on the 1943 child support order, whose amount for the period April 1943 to December 1956, with interest, then exceeded $16,000, and in support of her motion declared she had not previously sought a writ of execution “ (1) because I knew he . . . had no assets and (2) he has been absent from the State of California for almost all of the time since the judgment.” Testimony at the subsequent hearing established that Carl had lived continuously in Arkansas since the time of the divorce. Present assets of Carl in California from which Mary’s judgment could now be satisfied arose out of his interest of approximately $15,000 in the insurance proceeds of his deceased daughter, Verna, who was killed in a plane crash in 1964 with her husband and three children. The trial court ordered execution to issue against Carl for $14,334, with interest from April 8, 1965.

Even though more than 10 years had passed since the entry of judgment, Mary, on a proper showing, could still obtain execution to enforce the judgment. “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 [obtain a writ of execution within 10 years under section 681]. ...” (Code Civ. Proc., § 685.) Before 1955 the time for execution on a judgment without leave of court was five years, and the five-year period applies to the present case. To enforce a judgment after the

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Nutt v. Nutt

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FLEMING, J.

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