Walsh v. Walsh

McCOMB, J. Plaintiff appeals from (1) a judgment of dismissal predicated upon the granting of defendant’s motion for a summary judgment pursuant to the provisions of section 437c of the Code of Civil Procedure, and (2) an order dissolving an attachment.

So far as material here the complaint is in the form of a common count for money had and received. Plaintiff’s affidavit in opposition to defendant’s motion for a summary judgment alleges that Raoul A. Walsh and defendant were husband and wife and that plaintiff is the adopted minor son of said parties; that February 21, 1927, defendant and her husband entered into a property settlement agreement (hereinafter designated as the “first agreement”), which contract was modified by a subsequent agreement between the parties [284]dated October 17, 1934 (hereinafter designated as the “second agreement”); and that defendant has failed, neglected, and refused to provide for the support, maintenance, and education of plaintiff, pursuant to the terms of the contracts aforesaid.

The first agreement read in part as follows:

“AGREEMENT.

“This agreement, made the 21st day of February, 1927, by and between Raoul A. Walsh, hereinafter referred to as the husband, and Miriam 0. Walsh, hereinafter referred to as the wife,

“Witnesseth:

“Whereas, the parties hereto have two children, to-wit, John R. Walsh, born on the 10th day of July, 1914, and Robert R. Walsh, born on the 4th day of February, 1922, and,

“II. The husband shall, on or before the 31st day of December, 1927, pay to the wife, for her separate use and benefit the sum of Ten Thousand ($10,000.00) Dollars, and on or before the 31st day of December, 1928, the further sum of Ten Thousand ($10,000.00) Dollars . . . The said sums shall be paid to her in addition to the payments to be made to her for her maintenance and support and in consideration of her undertaking the maintenance and support of said children or either of them, as hereinafter provided, and in addition to any and all payments which the husband shall be obliged to make in any other paragraph of this agreement.

“III. The husband shall, so long as the wife remains unmarried to any person other than the husband, pay to the wife, for her separate maintenance and support, and for her separate use and benefit, and in consideration of her undertaking the support and maintenance of said children, or either of them, the sum of Five Hundred ($500.00) Dollars per week; provided, however, that if at any time the gross income of the husband from all sources shall be less than One Thousand ($1,000.00) Dollars per week, then during the time when such gross income is less than One Thousand ($1,000.00) Dollars per week the husband shall pay the wife a sum equal to one-half (y2) of such gross income. The term ‘gross income’ as here used shall include all moneys to which the husband is or may be entitled from any source whatsoever,