Robbins v. Bueno

CHRISTIAN, J. This appeal is from an order which restrained a garnishment of funds in the possession of a receiver where the levy was attempted without the permission [81]of the trial court, and which enjoined appellant from selling, or causing ■ to he sold, homestead property awarded to respondent by a decree of divorce.

On September 25, 1961, respondent recorded a declaration of homestead under Civil Code section 1238 on a residence at 13425 Cheltenham Drive, Sherman Oaks. On the following day she filed a complaint for divorce against Henry Robbins. The resulting decree of divorce awarded custody of the couple's minor child to respondent; Henry Robbins was ordered to pay $50 per week child support and $75 per week alimony. The court found that the property homesteaded by respondent was separate property of Henry Robbins; it was awarded to respondent for life. In lieu of a grant of specific community property respondent was awarded a money judgment in the amount of $75,000. Henry Robbins’ assets were largely outside the State of California. Robbins had already left the state and had demonstrated a contumacious disregard of the court’s orders; accordingly, a receiver was appointed to take control of all of Robbins’ assets in California in an effort to secure to respondent the payment of support and alimony, to meet the assessments, property taxes, repairs maintenance and insurance premiums on the homestead property, and, if possible, to satisfy the $75,000 money judgment.

After entry of the divorce decree, Henry Robbins confessed judgment in favor of his attorney, Antonio G. Bueno, in the amount of $16,000. Appellant Bueno commenced levy of execution under Civil Code section 1245 et seq., on respondent’s homesteaded residence, and procured the appointment of appraisers to ascertain the value of the property. The appraisers valued the property at $42,500. They reported that it was the separate property of Henry Robbins, that the liens and encumbrances on the property amounted to only $1,603.37, and that the property could not be divided without serious damage. Appellant then moved that the homestead be sold and that any proceeds exceeding the $15,000 homestead exemption1 be applied toward satisfaction of the judgment which Robbins had confessed in appellant’s favor.

Thereafter garnishment by way of execution of the same judgment was served on the receiver, who made a return that he had no funds in his possession belonging to Henry Robbins.