Shields v. Superior Court

SPENCE, J. Petitioner seeks a writ of mandate to compel the respondent court and the clerk thereof to issue execution.

From the petition it appears that petitioner obtained an interlocutory decree of divorce in 1924 and a final de[152]cree of divorce in 192'5. By the terms of said interlocutory decree, the husband was ordered to pay to petitioner the sum of $250 per month for the support of petitioner and the further sum of $150 per month for the support of the two minor children of the parties. The provisions of the interlocutory decree providing for the monthly payment to petitioner of the total sum of $400 have never been modified. Petitioner alleges that there is now owing and unpaid thereon a sum in excess of $12,000. On February 6, 1934, petitioner made a motion upon notice in the divorce action for the issuance of execution. Said motion was supported by an affidavit showing that the amount due was in excess of $12,000. A hearing was had and thereafter the trial court denied said motion. Petitioner further alleges that the trial court and the clerk thereof have refused and still refuse to issue said execution.

From the answers of the respondents herein and from the stipulations of the parties at the time of the hearing in this court, it appears that petitioner had been previously brought before the trial court in August, 1932, in response to an order to show cause. After the hearing upon said order to show cause, no modification of the decree was made, but the - trial court discharged the order, stating that if the husband paid to petitioner the sum of $100 per month, it would be deemed that the husband had complied with the terms of the decree to the best of his ability. The affidavit filed in the trial court in opposition to the motion for the issuance of execution is attached to the answer herein. It appears therefrom that the financial condition of the husband materially changed after the entry of said interlocutory decree and that he had been unable to comply with the terms of the decree for more than three years further than to pay the sum of $100' per month. It also showed that execution had been issued on four previous occasions. Upon one of said occasions, the writ had been returned partially satisfied to the extent of $465.10 by the proceeds of the sale of an interest of the husband in a piece of real property. Upon the other three of said occasions, the writs were returned unsatisfied. It further appeared from the affidavit that the husband had no property subject to execution; that he and others had been examined before the trial court regarding his property; that a pre