Cochrane v. Cochrane

SPENCE, J.

I dissent. The decree of divorce was entered in 1925 and an award of $35 per month was made therein solely for the support of the minor child of the parties. The child attained his majority on April 2, 1940, which was over fifteen years after the entry of the decree. It was not until December, 1940, that plaintiff made her motion for execution to issue for the alleged unpaid instalments. Plaintiff alleged in her affidavit that 1 ‘ defendant has failed to paj' to the plaintiff . . . any monies from May 1931 to April 1934 being a period of 35 months and amounting to the sum of $1,225.00. That from April 1934 to January 1937 defendant paid plaintiff . . . the sum of $25.00 per month being $10.00 per month less than ordered in said decree being in arrears during the above said dates in the amount of $330.00. ’ ’ There was no allegation showing any diligence on the part of plaintiff in attempting to enforce the decree at any prior time during the period of alleged delinquency which, according to plaintiff’s allegations, amounted to almost ten years. Upon the showing made, the trial court denied the motion for execution and it is apparent from the trial court’s opinion that the denial was based, at least in part, on the failure of plaintiff to take “timely action.”

The questions presented on this appeal are: (1) Was the enforcement of the decree by execution at the time the motion was made a matter of right or a matter which rested in the discretion of the trial court? (2) If enforcement of the decree by execution was a matter which rested in the discretion of the trial court, does it appear upon the record before us that the trial court abused its discretion in denying the motion for execution to issue?

As to the first question, it seems clear that the enforcement of the decree by execution, both as to instalments which accrued within five years prior to the making of the motion as well as those which accrued more than five years prior to the making of the motion, was not a matter of right but was a matter which rested in the discretion of the trial court. (Parker v. Parker, 203 Cal. 787 [266 P. 283] ; Shields v. Superior Court, 138 Cal.App. 151 [31 P.2d 1045].) This is recognized in Atkinson v. Atkinson, 35 Cal.App.2d 705 [96 P.2d 824] at page 707, which is the only ease which has been called to our attention involving a so-called continuing judgment in which an order denying enforcement by execution has been reversed. But the peculiar circumstances shown by the record in that case justified the holding that the trial court had abused its discretion in denying the motion. It is also recognized in Shields v. Shields, 55 Cal.App.2d 579 [130 P.2d 982] at page 583, in which case an order granting execution was affirmed.

As to the second question, there appears to be no authority directly in point. However, the recent decisions of the Supreme Court, involving ordinary money judgments, clearly indicate that when enforcement by execution rests in the discretion of the trial court, the one seeking the issuance of execution should be required to make a showing of reasonable diligence in the enforcement of the decree. (Beccuti v. Colombo Baking Co., 21 Cal.2d 360 [132 P.2d 207]; Butcher v. Brouwer, 21 Cal.2d 354 [132 P.2d 205]; Hatch v. Calkins, 21 Cal.2d 364 [132 P.2d 210].) I believe this is the sound rule to apply in cases involving so-called continuing judgments, for if the rule were otherwise, it would encourage attempts to enforce by execution many ancient alimony decrees at times when no such enforcement should be permitted. It is no unjust burden upon the one seeking the issuance' of execution fifteen years after the entry of a decree and almost ten years after alleged delinquencies commenced to require the making of a showing of reasonable diligence; and when no such showing is made, I believe that the trial court is entirely justified in denying the motion for the issuance of execution.

I am of the opinion that the record before us fails to show that the trial court abused its discretion and that the order denying the issuance of execution should be affirmed.