Edwards v. Superior Court

HOUSER, J.

It appears that some time prior to the filing of the petition herein petitioner was granted a decree of divorce from her husband, wherein she was awarded that several months thereafter, because of the fact that nothing had been paid by the husband on account of such alimony, he was cited for contempt of court. At the same time, but under a separate proceeding supplementary to execution, the husband was ordered to answer respecting his property. When the two matters came on for hearing, the judge then and there presiding required the wife to elect whether she would proceed by and through the citation for contempt of court, or by virtue of the proceeding to the execution of the judgment. Upon the declination and refusal of the wife to so elect, the court thereupon dismissed the proceeding supplementary to the execution and caused to be entered in its minutes an order of which the following is a part, to wit:

[262]

“ . . . The court gives plaintiff the right of election as to whether

Tie

elects to proceed upon the examination of judgment debtor or the order to show cause

re

contempt, the court holding that the two proceedings are inconsistent with each other. The counsel for plaintiff refused to elect between the two proceedings and the court then orders the proceeding

in re

examination of judgment debtor dismissed, to which plaintiff enters

Ms

exception. ...”

By virtue of a writ of mandate petitioner seeks to have the proceeding supplementary to the execution restored to the calendar of the lower court, to the end that the husband may be required to answer regarding his property.

The question first raised by respondents is as to whether, in an action for divorce where alimony is awarded the wife, under appropriate circumstances she is entitled to an order supplementary to the execution of the judgment. No authorities directly in point are cited. However, the provisions of the statutes would seem to be ample. Section 137 of the Civil Code gives the right to execution in satisfaction of an order of “alimony” during the pendency of an action for divorce; and section 1007 of the Code of Civil Procedure provides that: “Whenever an order for the payment of a sum of money is made by a court pursuant to the provisions of this code, it may be enforced by execution in the same manner as if it were a judgment.”