Duff v. Duff

McCABE, P. J. Appeal from judgment in favor of the plaintiff in the amount of $14,070, together with interest at the legal rate from November 26, 1946, to January 26, 1966, aggregating a total judgment of $32,948, entered in the Superior Court in and for the County of Orange on April 8, 1966.

Plaintiff and defendant herein, formerly husband and wife, were married in New York City in 1920. Their marriage endured until December 29, 1941, when Mrs. Duff instituted an action to terminate this relationship in White Plains, New York. On January 12, 1942, the order to show cause came on regularly for hearing, and the defendant, John Duff, personally appearing in that action in propria persona, was ordered to pay the plaintiff $70 per week “for her maintenance and support” commencing on that date. Some payments were made during the period 1942 to 1944. In 1943 the defendant entered the armed forces and the plaintiff was unable to locate him until 1946, when she located him in California.

The 1946 action to enforce the 1942 order of the New York [783]court was filed in Los Angeles County on June 5, 1946. An order to show cause issued out of that proceeding, which was heard on August 15,1946. The court granted no relief to Mrs. Duff. Defendant, Mr. Duff, filed his answer to the 1946 proceeding on September 5, 1946, by which the issues were joined.

Preceding these events, oh May 24, 1946, Mr. Duff prepared and signed the following: “I, John E. Duff, herewith agree to pay Hazel B. Duff the sum of Fifteen Dollars a week from the above date until such time as she remarries. ’ ’

On July 31, 1946, in Los Angeles County, Mr. Duff filed an action for divorce. Mrs. Duff was served and defaulted. The interlocutory decree was entered November 25, 1946, and the final decree entered on December 12,1947.

Plaintiff Hazel Duff’s present action to enforce the New York decree was filed on October 23,1964, in which she sought to recover a judgment for the allegedly due weekly payments of $70 from the date of the 1942 New York order which totalled $82,810. Defendant John Duff appeared by demurrer and later by answer. By his answer, defendant denied the allegations of the complaint and set forth three separate affirmative defenses, (1) that plaintiff’s complaint was barred by Code of Civil Procedure, section 337.5, subdivision 3; (2) laches; (3) all matters between the parties were adjudicated in the Los Angeles County divorce action of 1946.