Massey v. Sweeney

Opinion

WISEMAN, J. There is a Spanish proverb that says, “Manana is often the busiest day of the week.” We recognize that many people do not adhere to the philosophy expressed by Benjamin Franklin, who wrote, “Never leave that till tomorrow which you can do today.” In spite of this, we gladly close the door on a case where appellant has taken the meaning of procrastination to new heights rarely seen even in the justice system. She is seeking back child support owed for children who would now be 49, 47, and 46 years old, [345]respectively. Although the trial court correctly observed, “ma’am, you didn’t get what you were entitled to,” there comes a point when enough is enough.

Here, we hold appellant is not entitled to enforce a November 6, 1963, child support order pursuant to Family Code section 4502.

Procedural and Factual History

Ruth (appellant) and Albert Sweeney (respondent) were married until 1963, when they divorced. The marriage produced three children: Johnnie (bom Nov. 18, 1950), Debra (bom Nov. 17, 1952) and Sherry (bom Nov. 2, 1953). A child support order filed on November 6, 1963, provided that respondent was to pay appellant $50 a month for each child until the children reached their respective majorities (1968, 1970, & 1971). Respondent failed to make all the support payments, and the amount of arrearages is in dispute.

On October 11, 1979, the superior court denied appellant’s “motion for execution to issue on dormant judgment.” The court found: (1) appellant did make attempts to collect the child support, which was ordered paid through the district attorney’s office; (2) respondent was jailed in 1964 for contempt of court for failure to make support payments; (3) in 1969 an execution was issued which was unsuccessful; (4) since 1969, no further action was taken to collect the child support; (5) appellant’s health had been poor, and she did not have the funds to hire an attorney to assist her; (6) appellant had been aware for many years that respondent would receive certain real property when his mother’s life estate was terminated; and (7) the Tulare County Recorder’s Office shows that respondent and his then wife were the record owners of a substantial parcel of real property since 1969 (though it was not clear whether this was the same property under (6) above). The court held that in light of its findings, (1) any investigation would have revealed the recorded deed; (2) merely recording an abstract of judgment in the dissolution action would have created a lien on any of respondent’s property; and concluded (3) appellant failed to exercise even slight diligence in enforcing the judgment, as required by law.