Radonich v. Radonich

KNIGHT, J.

Approximately fifteen years after the entry of the interlocutory judgment of divorce awarding appellant alimony in the above-entitled cause she applied for and obtained an

ex parte

order, based on affidavit, for the issuance of an execution which the court shortly afterwards recalled and quashed on motion of respondent after a hearing on the merits; and this appeal was taken from the order made in the latter proceeding.

Section 685 of the Code of Civil Procedure, pursuant to which the order for the issuance of the execution was granted, provides that “by leave of court” a judgment may be enforced or carried into execution after a lapse of five years from the date of its

entry;

and it is well settled that in reviewing the trial court’s action either in granting an order for the issuance of an execution under the authority of said section, or. in recalling and quashing an execution so issued, an abuse of discretion is never presumed, a clear showing of such abuse being essential to interference by the reviewing court.

(Wilder

v.

Wilder,

214 Cal. 783 [7 Pac. (2d) 1032];

Parker

v.

Parker,

203 Cal. 787 [266 Pac. 283, 286];

Wheeler

v.

Eldred,

137 Cal. 37 [69 Pac. 619].)

In the present case the interlocutory judgment was entered in September, 1916. It awarded appellant the custody of the two minor children, Peter and John, aged five and four years, respectively, and directed respondent to pay appellant $12.50 a month toward her support and $20 a

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