SPENCE, J. I dissent.This appeal presents the question of the propriety of the trial court’s order denying to plaintiff the claimed right to enforce a divorce decree against the estate of her divorced husband following the death of the latter. The opinions of Mr. Justice Edmonds and Mr. Justice Carter express the view that the order of denial should be reversed but the authors of the opinions are not in accord as to the directions which should accompany such reversal. In my opinion, the order should be affirmed for the reasons hereinafter stated.
The divorce decree was entered in 1929 and enforcement was not sought until September, 1944, being more than 15 years after the entry of the decree and being at a time just prior to the expiration of the period allowed for the filing of claims against the estate. Plaintiff’s motion was accompanied only by her own affidavit, which affidavit failed to show any diligence whatever in attempting to enforce the decree despite the fact that plaintiff claimed deliquencies on the property settlement installments dating back as far as 1931 and on the alimony installments back as far as 1935, being [156]claimed delinquencies of 13 and 9 years respectively. In her affidavit, plaintiff set forth a copy of a letter which she alleged the deceased had written in 1932, which letter tended to cast doubt on at least a portion of plaintiff’s claims concerning the alleged delinquencies. Furthermore, to adopt the words of Mr. Justice Edmonds, “the counter-showing of the executrix cast doubt upon practically every material fact asserted by the appellant.” Nevertheless, both the opinion of Mr. Justice Edmonds and the opinion of Mr. Justice Carter are necessarily predicated upon the assumption that the trial court was compelled to accept the unsatisfactory showing of plaintiff and to determine that the claimed delinquencies existed. I believe that such assumption is wholly erroneous and that the opinions based upon such assumption have the effect of usurping the fact-finding function of the trial court.
The Code of Civil Procedure provides “That evidence is to be estimated not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict ...” (Code Civ. Proc., § 2061, subd. 6.) It has been said that this is “a mere commonplace rule.” (10 Cal. Jur., § 359, p. 1140.) In the light of this rule, the trial court was entirely justified in giving little, if any, weight to the allegations in plaintiff’s affidavit. That affidavit bore within itself the seeds of its own destruction, or at least partial destruction, and it was countered by an affidavit which probably contained as strong a showing as could be made by respondent following the death of the deceased. It is true that there was no direct contradiction by respondent of the existence of the claimed delinquencies, but it stretches one’s credulity to believe that claimed delinquencies of such long duration would have been permitted to exist against a solvent debtor, known to plaintiff to have been conducting an established plumbing business throughout the years in the city of the parties’ residence, without any attempt whatever having been made to enforce such delinquencies. The fact that there was no direct contradiction is immaterial, for it is well settled that the trial court is not always bound to accept the sworn testimony of a witness even though there may be no evidence directly contradicting such testimony (10 Cal.Jur., § 362, p. 1143); and the same is true when the sworn testimony is presented by affidavit. (Berg v. Journeymen Plumbers etc. Union, 5 Cal. App.2d 582 [42 P.2d 1091].) It therefore follows that the [157]trial court was not compelled to accept as true the allegations contained in plaintiff’s affidavit, and that the order of denial was justified upon that ground.
There is a second ground, however, which I believe requires an affirmance of the order of the trial court denying enforcement of the 15-year-old divorce decree. We are not here dealing with the attempted enforcement of an ordinary money judgment but are dealing with the attempted enforcement of the anomalous type of decree entered by a court of equity in a divorce action, in the nature of a continuing alimony decree. The direct subject of attack on this appeal is an order of the same court of equity which entered the divorce decree, denying the enforcement of such decree. I am of the opinion that the trial court was at all times invested with discretion in determining whether any claimed delinquent installments accruing under such decree should be enforced in the divorce action by execution, and that since the death of the deceased husband the trial court was invested with discretion to determine whether leave should be granted to enforce the same by action against his estate. In any event, it seems clear that the trial court was invested with discretion where, as here, enforcement was not sought until more than five years after the entry of the judgment. If this be true, then in the absence of any showing of diligence on the part of plaintiff or, to follow the reasoning of Mr. Justice Edmonds, in the absence of any satisfactory showing of diligence such as the law requires, I believe that the trial court’s order denying enforcement as to all claimed delinquencies should be affirmed, as it cannot be said that the trial court abused its discretion in making its order of denial.
Mr. Justice Edmonds and Mr. Justice Carter, together with those of my associates who have joined in their opinions, reach the conclusion that plaintiff was entitled as “a matter of right” to enforcement of the claimed delinquencies on installments of alimony which accrued within five years prior to the time that enforcement was sought. Assuming for the purpose of the discussion of this point only, that the trial court was compelled to find that such claimed delinquencies existed, I cannot agree that plaintiff was entitled to the enforcement of such delinquencies as ‘‘a matter of right” or that the case of Shields v. Superior Court, 138 Cal.App. 151 [31 P.2d 1045], should be disapproved. It seems to me to be wholly inconsistent to hold, as does the opinion of Mr. [158]Justice Edmonds, that such enforcement was “a matter of right” but that such enforcement could be denied “upon equitable grounds.” Enforcement is either a matter of right or a matter of discretion, but it cannot be both.
The view that plaintiff was entitled as a matter of right to enforcement of the claimed delinquencies on installments of alimony which accrued within five years prior to the time that enforcement was sought is necessarily based upon the following propositions: (1) That the provisions of section 681 of the Code of Civil Procedure govern the manner of enforcement of continuing alimony decrees, and (2) that said provisions of section 681 apply to installments on continuing alimony decrees which accrue more than five years after the entry of the decree but within five years prior to the time that enforcement is sought. Whatever doubt may exist concerning the first proposition, there can be no doubt concerning the untenability of the second. The applicability of section 681 is limited by the express terms of the section to enforcement “at any time within five years after the entry” Of the judgment, and the provisions of that section cannot be relied upon here to establish the claim that enforcement was a matter of right more than 15 years after such entry.
The cases of DeUprey v. DeUprey, 23 Cal. 352, and Gaston v. Gaston, 114 Cal. 542 [46, P. 609, 55 Am.St.Rep. 786], are cited by Mr. Justice Edmonds in support of the conclusion that such enforcement is a matter of right. The cited cases have no direct bearing on the problem before us. The DeUprey case dealt merely with the application of the statute of limitations in an independent action brought upon an installment judgment, and it was held that the statute of limitations did not start to run on each installment until such installment became due. It did not deal with enforcement by execution or with a motion made for leave to enforce in the action in equity in which the original'judgment was entered. The Gaston case dealt merely with the duration of a lien expressly imposed by the court to secure the installment judgment. The installments on the judgment were regularly paid for 10 years and, upon default, the court in which the judgment had been entered ordered the sale of the property upon which the lien had been imposed. It was held that the lien had not expired two years after the entry of the judgment under the then provisions of section 671 of the Code of Civil Procedure, as the lien did not “derive its force from that section.” The court [159]further repudiated the claim that because more than five years had elapsed after the entry of the judgment “the judgment ceased to be of binding force, and process could not issue under it.” (Emphasis added.) It is therefore obvious that the court was there discussing the question of the power of the trial court to enforce the installment judgment after such lapse of time, and was not discussing the question of whether the matter of enforcement was one of right or of discretion. The conclusions reached in the DeUprey and Gaston cases are clearly correct, but they do not support the statement by Mr. Justice Edmonds that “the creditor is entitled, as a matter of right, to execution upon such a judgment for all amounts which have accrued within five years from the date of the application therefor.”
It is doubtful whether section 681 of the Code of Civil Procedure, which deals with the enforcement of a judgment by execution and is claimed to make such enforcement a matter of right here, was ever intended to govern the enforcement of continuing alimony decrees. It would seem more logical to conclude, despite the assumption of the applicability of section 681 found in many of the cases dealing with continuing alimony decrees, that section 140 of the Civil Code, which provides that the trial court “may enforce” its continuing alimony decrees by any “remedy applicable,” was intended to be the governing section. This question was discussed in Shields v. Superior Court, 138 Cal.App. 151 [31 P.2d 1045], but it was not neeesary to decide the question there, and it is not necessary to decide it here, for the reason that in each case more than five years had elapsed after the entry of the decree before the motion for enforcement was made. It was there said on pages 153 and 154: “As we view the situation in the present case, it is unnecessary to discuss these conflicting contentions. If the position taken by respondents is correct, then the issuance of execution was at all times a matter within the discretion of the trial court. If, on the other hand, the position taken by petitioner is correct, the question of whether she was entitled to the issuance of a writ of execution was to be determined by the provisions of sections 681 and 685 of the Code of Civil Procedure. The provisions of said section 681, relating to judgments generally, entitled the judgment creditor to a writ of execution as a matter of right ‘at any time within five years after the entry’ of the judgment. Under said section 685, a writ of execution may be had upon a judgment only [160]‘by leave of court’ after the lapse of five years ‘from the date of its entry.’ The decree here was entered in 1924 and the motion for the issuance of execution was made in 1934, approximately ten years after the entry of the decree. Under either view, petitioner was not entitled to a writ of execution as a matter of right at the time the motion was made, but only in the discretion of the trial court. While it is true that a monthly installment had accrued and become payable each month during the five-year period immediately preceding the making of the motion for the issuance of execution and while it is further true, as pointed out by appellant, that the decree could not be modified as to sums already accrued (Cummings v. Cummings, 97 Cal.App. 144 [275 P. 245]; Bruton v. Tearle, 117 Cal.App. 696 [4 P.2d 623], we are here dealing solely with the question of the manner of enforcement of the provisions of the decree. Assuming that sections 681 and 685 of the Code of Civil Procedure are the sections providing for the manner of enforcement as contended by petitioner, she was not entitled thereunder to the issuance of execution as a matter of right after the lapse of five years from the date of the entry of the decree. This view finds support in Parker v. Parker, 203 Cal. 787 [266 P. 283], and Radonich v. Radonich, 130 Cal.App. 250 [20 P.2d 51]).”
It therefore appears immaterial here whether section 140 of the Civil Code is deemed to be the governing section or whether sections 681 and 685 of the Code of Civil Procedure are deemed to be the governing sections covering the manner of enforcement of continuing alimony decrees. The conclusion seems inescapable under either view that none of the cited sections makes enforcement of a continuing alimony judgment a matter of right after the lapse of five years from the date of the entry of such decree. In my opinion, at least after the lapse of-such five-year period, the matter of enforcement of a continuing alimony decree is a matter which is committed to the sound discretion of the trial court, and an order of the trial court denying enforcement should not be reversed unless it clearly appears that there has been an abuse of such discretion. I am further of the opinion that when such enforcement is sought after the lapse of such 5-year period, and it is claimed the delinqencies have existed over a long period of years, the burden should be placed squarely upon the judgment creditor to make a clear and convincing showing concerning the existence of the delinquencies and of other facts [161]which would appeal to a court of equity in exercising its discretion with respect to enforcement.
The case of Cochrane v. Cochrane, 57 Cal.App.2d 937 [135 P.2d 714], cited by Mr. Justice Edmonds in support of his conclusions, lends little, if any, support thereto. The division in the court in that case was not clearly drawn upon the question of whether the matter of enforcement was a matter of right or a matter within the discretion of the trial court, but rather upon the question of where the burden rested to show facts which should be considered by the trial court in the exercise of its discretion. Furthermore, it appears in that case that the judgment debtor, who was still living, “made no counter-showing.”
The case of Corcoran v. Duffy, 18 Cal.App.2d 658 [64 P.2d 735], cited by Mr. Justice Carter, is clearly distinguishable and lends no support to his conclusions in the instant case. There the trial court had exercised its discretion by ordering execution to issue, and the sole question discussed was that of diligence. The judgment debtor there was still living and he conceded that nothing had been paid on the judgment at any time. Moreover, it was shown by the judgment creditor’s affidavit not only that execution had been returned unsatisfied within five years after the entry of judgment, but also that the judgment creditor had thereafter executed at various times three formal instruments entitled “Acknowledgment and Promise to Pay.” In each of these, the judgment debtor acknowledged that he owed the amount of the judgment with interest and that he had paid nothing thereon; in each, he promised to pay the same without fixing any date for such payment; and in each, it was recited that “the undersigned gives this acknowledgment and promise in order that said indebtedness shall not be barred by any statute of limitations. ’ ’ The court there affirmed the order granting the motion and it stated at page 660: “The trial court’s ruling upon the motion should not be disturbed in the absence of a showing of a clear abuse of discretion and we find no such showing in the present case. ’ ’ Likewise here I find no showing of an abuse of discretion and in the absence of such showing, the action of the trial court should be sustained.
In summary, I am of the view that the order of the trial court denying enforcement cannot properly be reversed: First, because any order of reversal, with or without directions, must necessarily usurp the fact-finding function of the [162]trial court with respect to the existence of the claimed delinquencies ; and second, because any order of reversal, with or without directions, must necessarily not only usurp the fact-finding function of the trial court with respect to the allegations relating to diligence but must also substitute the discretion of this court for the discretion of the trial court in a case where no abuse of discretion- on the part of the trial court has been shown.
With respect to the question of diligence, it must be recalled that no attempt was made to exercise the claimed right to enforcement until more than 15 years after the entry, of the decree and at a time when the lips of the judgment debtor were sealed in death. According to plaintiff’s allegations, delinquencies occurred within two years after the entry of the decree but no attempt was made to obtain enforcement before the lapse of the 5-year period. The only evidence purporting to corroborate in any manner the claims of plaintiff was the letter written by the judgment debtor in 1932, which related only to the situation at the time of writing, which was 12 years before enforcement was sought. Plaintiff strongly relies on that letter but that bit of evidence tends to cast doubt upon part of plaintiff’s claims. Plaintiff’s remaining allegation on the issue of diligence consisted of alleged conversations with the deceased, and I agree with Mr. Justice Edmonds that such evidence constitutes “the weakest and most unsatisfactory, of all kinds of evidence.” The trial court was not compelled to believe the latter allegations, more particularly in the light of the counter-showing of respondent, but even assuming the truth thereof, I further agree with Mr. Justice Edmonds where he says: “But if she chose, for more than five years, to rely upon his good intentions, - as he expressed them to her, she cannot now say that she used the diligence which the law requires of her in the protection of her legal rights.” It therefore appears that under any view of the evidence, it cannot be said here that the trial court abused its discretion in denying enforcement, and I do not believe that Mr. Justice Garter’s conclusions can be reconciled with the recent decisions of this court in Butcher v. Brouwer, 21 Cal.2d 354 [132 P.2d 205]; Beccuti v. Colombo Baking Co., 21 Cal.2d 360 [132 P.2d 207] ; and Hatch v. Calkins, 21 Cal.2d 364 [132 P.2d 210].
In conclusion, I desire to state -that I deem it most unfortunate that a majority of this - court has reached the conelu[163]sion that regardless of the time when a continuing alimony decree may have been entered, and regardless of whether the judgment creditor may have exercised any diligence in attempted enforcement, such judgment creditor is entitled as a matter of right to enforcement at any time of those installments which may have accrued within 5 years of the time when enforcement is sought. It is a matter of common knowledge that there are countless thousands of old continuing alimony decrees, many of which were entered during the boom era of the 1920’s and many of which have never been modified. It is also a matter of common knowledge that we have been through a long period of depression followed by several years of disturbed conditions attributable to the war, and that there are many debtors, including those who have served in the armed forces, who have been unable during these disturbed times to make the full payments specified under such old decrees, or even to pay counsel to obtain modification. In some cases, the parties have in practical effect modified such decrees by oral understandings, express or implied, to pay and accept amounts smaller than those specified in decrees entered during earlier years. Actual modifications by court order of these old decrees, if now possible, could not affect accrued installments, but the question arises: “Should the judgment creditor be held to be entitled to execution as a matter of right on alleged delinquencies accruing during the five years immediately preceding the application for execution to issue?” To answer this question in the affirmative, as do the opinions of Mr. Justice Edmonds and Mr. Justice Carter, will undoubtedly do grave injustice in numerous cases and may spell financial ruin for many who are now struggling for economic rehabilitation. On the other hand, the rule enunciated in Shields v. Superior Court, supra, 138 Cal.App. 151, and recognized in many of the eases, would leave the matter of enforcement of continuing alimony decrees within the sound discretion of the trial court at all times and would place no undue burden upon the judgment creditor. In those cases in which it appears that the judgment debtor has died, I believe that the widest latitude should be allowed to the trial court in the exercise of its discretion, for it is obvious that it is ordinarily impossible for the representative of the deceased to make a full counter-showing with respect to payments made or with respect to reasons or understandings for nonpayment of, or partial payment on, [164]
For the reasons stated, I cannot join in the conclusion that the order of the trial court should be reversed but, on the contrary, I believe that the order denying enforcement should be affirmed.
Schauer, J., concurred.