Read v. Read

NOURSE, P. J. Plaintiff, who had been the successful litigant in an action for divorce, moved for execution after five years under the provisions of section 685 of the Code of Civil Procedure. A decree of divorce had been entered in October, 1933, awarding plaintiff custody of the two minor children, $50 a month for the support of plaintiff, and $50 a month to be paid to plaintiff for the support of each minor child. The defendant having been in arrears on these payments the plaintiff filed her motion for execution on February 16, 1948. Following a hearing the order which is the subject of this appeal was made on April 22,1948, denying the motion insofar as it sought execution for sums accruing five years prior to the order, but reserving to plaintiff the right to a writ for sums due within said five-year period. On April 23, 1948, a writ of execution was directed to issue in the sum of $3,600, that being the amount which had accrued during the five-year period.

The appeal is taken from the order of April 22, 1948, and presents the single question of the right of appellant to a writ covering the sums accruing more than five years prior to the date of the order. The respondent has not filed a brief and his counsel has declined to make an appearance. On the hearing* it appeared that after the divorce of these parties respondent had married another and produced two children. A divorce from the second marriage followed and respondent married another and produced one child. The third marriage ended in a divorce. These matters being before the trial court when the request for execution covering accruals prior to the five-year period was presented, the issue was one addressed to the discretion of the trial court. (Butcher v. Brouwer, 21 Cal.2d 354, 358 [132 P.2d 205]; Lohman v. Lohman, 29 Cal.2d 144, 148 [173 P.2d 657]; Di Corpo v. Di Corpo, 33 Cal.2d 195, 199 [200 P.2d 529].)

Insofar as the order reserves the right to execution for the sums accruing during the immediate five-year period [this reservation was covered by a subsequent order that such a writ should issue] the trial court followed the accepted rule that a writ will issue for such instalments “as a matter of right. ’ ’ (Di Corpo v. Di Corpo, supra; Lohman v. Lohman, supra; Wolfe v. Wolfe, 30 Cal.2d 1, 4 [180 P.2d 345].)

As to the portion of the order of April 22, 1948, denying the application for a writ covering the antecedent instalments the appeal is controlled by the Butcher case and those cited above and the only debatable question is whether the reviewing [359]