Bolden v. Davies

WARD, J. This is an appeal from a judgment entered in the superior court of the city and county of San Francisco awarding Ruth Stickney Bolden, formerly Ruth Stickney Davies, the sum of $3,675.85 together with interest and costs. The judgment was based upon a previous judgment in a divorce action in favor of plaintiff and against defendant wherein it was decreed that defendant should make certain monthly payments to plaintiff for the support and maintenance of a minor child, the issue of the marriage.

The complaint alleges that the minor child was adopted by the present husband of plaintiff. It is conceded that as [239]of the day of the adoption defendant’s responsibility for the support of the minor terminated. The amounts involved herein became due prior to that time. The answer alleges that the minor was “supported by its Grandparents without « cost or expense to said plaintiff.” Defendant admits the adoption but alleges that when he consented thereto “it was agreed between defendant and plaintiff that plaintiff would make no further demand upon defendant for payments for the support and maintenance of said minor child then accrued or thereafter to accrue. ’ ’ Both by demurrer and by answer defendant pleaded the statute of limitations. (Code Civ. Proe., § 336(1).) It was subsequently stipulated that all sums claimed to have become due prior to April 15, 1941, were waived.

Plaintiff’s ease consists of her testimony and a certified copy of the final decree of divorce. Although a copy of the decree is not included in the record on appeal, the pleadings make up for this deficiency since the answer does not deny the existence of the judgment nor the provision requiring defendant to make certain payments until the child’s majority, which had not been reached at the commencement of the present suit. Plaintiff testified that of the payments falling due from April 15, 1941 to December 7, 1945, defendant paid $50 and $20 only—“That was last April, or in May of 1945.” She also received $20 before the divorce became final to “call off” his obligation to pay $400. The 1945 payments were credited “on the oldest amount due on the judgment.” The answer merely denied that payments of $35 on October 15, 1942, and on the 15th of every month thereafter to and including October 15, 1945, were required. Defendant’s case, and the evidence upon which he relies, consists of his own testimony and that of another witness, also the Consent to Adoption and the affidavit of defendant’s attorney. Defendant testified that in the last part of November, 1945, his former wife’s attorney “assured me if I would agree to the adoption, to consent to the adoption, which he thought was for the best interest of everybody concerned, there would be no attempt on the part of the people who were attempting—my ex-wife and her new husband, or certainly not on his part, to in any way attempt to collect the back payments.” He further added that the boy lived with his grandparents, ‘ ‘ and it was not until I found that the grandmother had died, or was very ill, and I went up to Sacramento and offered to assume the obligation I had for the support of this boy, and I told the former Mrs. Davies I wanted to assume this obligation, and make payments every