Willen v. Willen

[352]

THE COURT.

An interlocutorydecree of divorce was granted to Sophia Willen (sometimes known as Sophie Willen) upon her cross-complaint against respondent Samuel Willen on the ground of extreme cruelty. Appellant was awarded the sum of $40 per month for the support of herself and children of the marriage. Respondent was receiving certain disability benefits amounting to $150 each month from two insurance policies on his life, which the court found were part of the community property of the marriage, and he was required to pay the above sum to his wife from the amounts received under the policies. The decree was entered on December 30, 1929, and no appeal was taken therefrom. On February 20, 1931, the interlocutory decree was amended to provide that payments by the insurers should be made to a receiver appointed by the court, who was directed to pay Mrs. Willen the sum of $40 monthly, and to her husband the balance. The amended decree also declared the amounts allowed as alimony to be a lien on the policies and the amounts payable thereunder to secure the payments decreed. This order was appealed from by Samuel Willen and was subsequently affirmed

(Willen

v.

Willen,

119 Cal. App. 483 [6 Pac. (2d) 554)].

That a receiver may be appointed and a lien declared to enforce payments ordered for a wife’s support was decided in the following cases:

McAneny

v.

Superior Court,

150 Cal. 6 [87 Pac. 1020];

Estate of Smith,

200 Cal. 654 [254 Pac. 567].

Respondent failed to make the payments as directed and was in arrears in the sum of $470. On April 23, 1931, appellant filed her affidavit alleging the nonpayment of the above sum, and that since the date of the amendment to the decree the further sum of $80 had accrued, upon which $26.50 had been paid, leaving a total unpaid of $523.50. Execution was issued, and the sheriff of the city and county of San Francisco levied upon the unpaid proceeds of the policies, whereupon respondent filed his affidavit and claim of exemption, alleging these funds to be exempt from execution under the provisions of section 690 of the Code of Civil Procedure. The amounts due and unpaid upon the insurance policies do not appear. Thereupon a notice of motion for an order declaring the sums levied upon to be