Atkinson v. Atkinson

[706]

MARKS, J. —

This is an appeal from an order denying a motion to issue an execution on a judgment.

On September 14, 1925, in an action for divorce plaintiff was awarded $150 a month for her support and maintenance. Payments in full were made regularly by defendant until November 1, 1932. He thereafter paid $100 per month from that date to August 1, 1937, upon the promise “that as soon as business conditions improved he would make up his back payments’’. No payments were made for the months of August, September and October, 1937. When the petition to issue the execution was filed on February 24, 1938, it was claimed and not denied that there was $3,300, besides accrued interest, unpaid on the judgment.

Defendant admitted that since the divorce he had accumulated property of a value, above incumbrances, in excess of $30,000. He admitted placing title to the major part of this property in the name of his brother and that it was later transferred to his second wife. He claims this last transfer was for a valuable consideration. He had other property of small value standing in his own name.

Defendant testified that his wife was ill and that he was not in good health; that he was a practicing physician engaged in the general practice of medicine in Banning, California; that his income from his practice had been greatly reduced. We find no statement of his net earnings nor of his net income, if any.

Defendant urges that the affidavit of plaintiff supporting the petition for the issuance of the execution was defective in that it did not sufficiently set forth the reasons for failure to proceed in compliance with the provisions of section 681 of the Code of Civil Procedure and that such failure to set forth such reasons was sufficient ground for denial of the motion. (Sec. 685, Code Civ. Proc.)

Under the facts of this case we regard the affidavit as sufficient in this respect. Section 685 of the Code of Civil Procedure has to do with the enforcement of judgments after the lapse of five years from the date of their entry. The section requires reasons to be set forth why the judgment was not enforced within the five years. In the instant case the five years after the entry of judgment expired in 1930. The judgment was payable in monthly instalments.