McMillan v. McMillan

THE COURT.

Appeal from an order denying a motion to quash a writ of execution issued by the Superior Court in and for the County of Alameda upon petition of defendant and respondent after default by the appellant in the payment of $100 monthly to respondent in conformity

[436]

with the terms of a community property settlement agreement that was to be “a final, full and complete settlement and division of all the community property rights or property interest between the parties”. The agreement was introduced in evidence in the divorce action and was approved and made a part of the interlocutory decree “as fully and completely as if the same were herein set forth”. The agreement provided for the payment of $100 a month to respondent for the support of herself and the minor child of the parties. In the event of respondent's marriage the payments were to be “reduced to the sum of thirty-five (35) dollars per month until the minor child of the parties hereto shall have.reached the age of 25”, or become married. The final decree of divorce was entered on November 19, 1921.

In August of 1928 the appellant noticed a motion to modify the interlocutory decree by changing the custody of the child, then thirteen years of age. After hearing upon the motion, the parties being present and represented by their attorneys, the trial court entered an order on August 17, 1928, directing that the child reside with a Mrs. Leila Feeley. The custody of the child was not changed, however, but remained in the respondent. With the entry of this order the appellant ceased making payments to the respondent as required by the property settlement agreement and the interlocutory decree. In June of 1929, the appellant, then being in default of his payments to the extent of $1,050, was cited to show cause why he should not be adjudged in contempt. At the conclusion of the hearing on the charge of contempt the court, on June 21, 1929, made an order awarding the temporary custody of the minor to the appellant, and directing further that during such period the expense of the support and maintenance of the child should be deducted from the $100 a month provided to be paid to respondent in the property settlement agreement and interlocutory decree.

At the same time, the court directed a correction of the minutes of the order of August 17, 1928, so that the same should read additionally: “And all sums paid toward the support and maintenance of the said minor shall be deducted from the sum heretofore awarded to defendant” as