Lawson v. Lawson
Before: Beatty, Kerrigan
Synopsis
Husband and Wife — Divorce — Judgment for Alimony—Partial Exemption — Earnings ' for Support of Husband’s Indigent Mother—Besidence.—Where a wife, who had obtained a divorce from her husband, was seeking to enforce a judgment for alimony out of the whole of the earnings of the husband, it is held that the court properly made a partial exemption out .of such earnings for the support of the husband’s indigent mother, who was shown to be old and in poor health, and unable to maintain herself, and to have to look to her son for her sole means of support, and to be a resident of the state, and that, being so dependent on her son for support, she was a member of his family within the meaning of section 690 of the Code of Civil Procedure allowing such exemption, though not residing with her son.
Id.—Family of Judgment Debtor—Common Abode not Essential.— It is not essential, to constitute a member of the family of the judgment debtor, that they should occupy a common abode. The debtor’s wife and children may not be living with him, and yet they form part of his family. Though in a narrow and strict sense, a mother not living with her son is not a member of his family by virtue of their relationship, yet, where she is indigent and helpless, and dependent on him for support in this state, she forms part of his family, though not having the same abode.
Id.—Legal Duty of Child to Support Indigent Parent.—Under section 206 of the Civil Code, the legal obligation is imposed upon a child to support an indigent and helpless parent, to the extent of his ability.
Id.—Test of Constitution of Family.—It is the relation, and dependence of the relation, and not the aggregation of the individuals, that constitutes a family.
Id.—Insufficient Proof of Former Partial Exemption—Bevbrsal of Order upon Appeal—Bes Adjudicata—Subsequent Order upon Proper Proof,—Where a former order allowing a partial exemption was made upon insufficient proof and was reversed upon appeal, such reversal is not res adjudicataj in the sense that it precludes a subsequent order upon a motion presenting new evidence sufficient to sustain the order.
Id.—Principle of Res Ad judicata not Applicable to Motions.—The court committed no error in permitting the defendant to prove the proper facts to sustain the subsequent order. Such permission was no more in effect than allowing him to renew his motion for an order of exemption. The principle of res adjudicata is not, in a strict sense, applicable to motions.
Id.—Renewal of Motion a Matter of Discretion.—In this state the granting or denying of permission to renew a motion is matter of discretion with a trial judge.
Id.—Effect of Reversal of Former Order—Liberal Exercise of Discretion—Abuse not Shown.—It is held that the defendant having had the benefit of a hearing in the trial court, and of an appeal from the trial court’s order, the permission accorded him by the trial court to make the proof in question was a very liberal exercise of judicial discretion, yet this court is not prepared to say that such discretion was abused.
Opinion — Kerrigan
KERRIGAN, J.
In an action for divorce plaintiff obtained judgment against the defendant, which provided, among other things, that defendant pay to plaintiff the sum of $100 per month for her support and maintenance. The defendant having failed to comply with this provision of the judgment, the plaintiff took proceedings under section 710, Code of Civil Procedure, and filed with the auditor of the city and county
[498]
of San Francisco (defendant being at that time a justice of the peace of said city and county receiving a monthly salary of $300) a duly authenticated copy of the judgment, whereupon said auditor paid into court the sum of $1,200, the amount of salary at that time due defendant. In due time plaintiff moved the court for an order that the whole of this sum be paid to her in part satisfaction of said judgment. After hearing had, the court ordered that of the sum of $600, representing defendant’s salary for two months, the plaintiff be paid $400, and that $200 was exempt from execution, and should be paid to defendant.
Plaintiff appeals from this order, and asks for its reversal upon the ground, among others, that the defendant was not entitled to any exemption whatever; and this is the principal question to be determined.
Section 690 of the Code of Civil Procedure provides as follows: “The following property is exempt from execution or attachment, except as herein otherwise specially provided: ... 10. The earnings of the judgment debtor for his personal services rendered at any time within thirty days next preceding the levy of execution or attachment, when it appears by the debtor’s affidavit or otherwise that such .earnings arc necessary for the use of his family, residing in this state, supported in whole or in part by his labor; ...”
Defendant claimed the exemption upon the ground that the fund attached constituted his earnings, and that the said earnings were necessary for the support of his family residing within this state. In substantiation of this claim defendant introduced evidence tending to show that he contributed to the support of his mother. The evidence on this point discloses that while the defendant and his mother do not dwell under the same roof, she is nevertheless a resident of this state; that she is old, in poor health, and unable to maintain herself, and looks to defendant for her sole means of support.
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