Serna v. Serna

VALLÉE, J.

On March 24, 1939, plaintiff was awarded a final decree of divorce from defendant. The decree provided that plaintiff pay defendant for the support and maintenance of a minor child $15 per month. On March 28, 1948, defendant filed a notice of motion for an order directing the issuance of a writ of execution to enforce payment of sums unpaid for the support of the child between August 15, 1940, and June 1, 1942. The motion was denied. Defendant appeals.

The motion was heard on the uncontradicted affidavit of defendant. There was no counteraffidavit filed although plaintiff was represented by counsel on the hearing of the motion. He has not made an appearance here.

The facts stated in defendant’s affidavit are: Plaintiff made the payments until August 16, 1940. About October, 1940, and repeatedly thereafter she asked plaintiff for support and maintenance for the child as ordered by the court. He informed her he had no money and could make no further payments. Some time thereafter plaintiff disappeared and she was unable to locate him. She was without any funds with which to collect the payments from plaintiff and plaintiff represented to her that he was without funds. He made no payments after August, 1940, until a writ of execution was issued on June 19, 1947. The writ was retroactive to June 15, 1942, but the payments accruing from August 16, 1940, through June 1, 1942, are unpaid. After procuring the writ of execution defendant had the order modified to provide an increase in the award for the support of the child. At the hearing on the order to show cause re modification defendant learned for the first time, through the testimony of plaintiff, that he had been in the armed forces during the war and that after his discharge in late 1943 or early 1944 he began the operation of a bar and dance hall and reported a net income for tax purposes of from $8,000 to $10,000 a year for the years 1944, 1945, and 1946. Plaintiff made no allotment for the support of the child while he was in the service.

Appellant contends that the trial court abused its discretion in denying the motion. A trial court may order the issuance of a writ of execution after the lapse of five years from the date of unpaid installments of a support award “after due notice to the judgment debtor accompanied by an

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affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code.” (Code Civ. Proc., § 685,