Wilkins v. Wilkins

95 Cal.App.2d 605 (1950) DELLA LOUISA WILKINS, Respondent,

v.

ALBERT JOHN WILKINS, Appellant.

Civ No. 3894. California Court of Appeals. Fourth Dist.

Jan. 17, 1950. Harry V. Leppek for Appellant.

Waldo Willhoft for Respondent. [606]

GRIFFIN, Acting P. J.

Plaintiff and defendant were divorced. By the interlocutory decree, entered July 2, 1936, defendant was ordered "until further order of the court" to pay plaintiff $40 per month, payable semimonthly on the 10th and 26th days of each month, commencing June 26, 1936, as and for the support of plaintiff and the two minor children, Alberta and Joseph Wilkins. On March 4, 1938, said sum was increased to $50 per month. In an ex parte application, on September 28, 1948, plaintiff filed an affidavit alleging that defendant paid $50 per month "up to and including August 10, 1943," but thereafter failed to make any further payments; that all payments subsequent to September 10, 1943, amounting to $2,950, or "56 monthly payments," were unpaid under the order, and asked that execution be issued accordingly. On September 28, 1948, an order was signed allowing that amount, and ordering execution to issue. Execution did issue on that same date. On December 16, 1948, defendant moved to vacate the order and recall the writ issued on the ground that the court was not informed of the true facts when the order was signed. This motion was submitted. By affidavit of defendant, he claimed that he had made all payments due until July 10, 1943; that the minor daughter, Alberta, was married in August, 1939, at the age of 19; that the son, Joseph, was married in June, 1943, at about the age of 19, that plaintiff remarried in June, 1948, and that the interlocutory decree ordering the maintenance had never been modified and that said court order was never "severed" to show how much was to be paid for each child or to the plaintiff and therefore defendant claimed that no reason existed for said order to continue.

After argument, on December 30, 1948, the court signed an order denying the motion. Defendant, on February 17, 1949, appealed from the order on the clerk's transcript alone, which transcript sets forth the facts above related.

Defendant's opening brief raises the question as to whether plaintiff should be allowed the full amount ordered paid to the mother and minor children, jointly, after the date the minor children were married and became of age. In support of the contention that the order was erroneous, the defendant cites such cases as Parker v. Parker, 203 Cal. 787 [266 P. 283]; Hale v. Hale, 6 Cal.App.2d 661 [45 P.2d 246]; Clavey v. Lord, 87 Cal. 413 [25 P. 493]; Doehla v. Phillips, 151 Cal. 488 [91 P. 330]; and Tremper v. Tremper, 39 Cal.App. 62 [177 P. 868].