Lentfoehr v. Lentfoehr

SWAIN, J.

I dissent. In Burton v. Tearle (1936), 7 Cal. 2d 48, 57 [59 P.2d 953, 106 A.L.R 580], the Supreme Court held that a mere money judgment rendered in California, based on a New York decree awarding alimony to plaintiff in a divorce suit, was in legal effect a judgment for alimony (7 Cal.2d 55-56), and then went on to hold: “One of the characteristics of such a judgment is that as against said judgment the judgment debtor’s earnings are not exempt from execution. (Citations.) Not only are the earnings of the judgment debtor under an alimony judgment liable for the payment thereof, but the means of enforcement of such a judgment are different and more effective than those applicable to the enforcement of an ordinary money judgment.” The court referred to the power to punish for contempt as one of the differences between the two sorts of judgments. On pages 58 and 59 of 7 Cal.2d is further discussion of the reasons for the rule announced. The court said the trial there (not the court that originally ordered the alimony) could exercise its discretion and could allow the defendant some part of his wages as exempt, if deemed necessary.

It is true, that case dealt with a judgment for alimony, and we have here a judgment for attorney’s fees and costs, and defendant argues that this is not alimony. But it appears to me that the reasons which led to the decision are equally applicable to both sorts of judgments. Money awarded a wife to pay her attorney fee in a divorce ease is as much for her support as money for a doctor’s fee or a grocery bill. This was not a division of community property. Both may be enforced by contempt proceedings, and both are originally matters in the discretion of some court. See also Rankins v. Rankins (1942), 52 Cal.App.2d 231 [126 P.2d 125],

On the reasoning of the decision cited the order should be affirmed.