Henry v. Henry

• Citation: 182 Cal.App.2d 707,6 Cal.Rptr. 418
• Court: California Court of Appeals
• Decision Date: 15 July 1960
• Parties: Laura Lee HENRY, Plaintiff and Appellant, v. William Addison HENRY, Defendant and Respondent. Civ. 24482.

Page 418

6 Cal.Rptr. 418

182 Cal.App.2d 707

Laura Lee HENRY, Plaintiff and Appellant, v. William Addison HENRY, Defendant and Respondent.

Civ. 24482.

District Court of Appeal, Second District, Division 2, California.

July 15, 1960.

Svenson & Garvin, by Harold W. Svenson, Van Nuys, for appellant.

No appearance for respondent.

ASHBURN, Justice.

Appeal from order allowing defendanthusband's claim of exemption of his wages from an execution based upon allowance of court costs and attorney's fee in his wife's divorce action. By order of September 24, 1956, the court directed defendant to pay $62.50 per week for support of plaintiff and the four children of the marriage; also: 'The defendant is ordered to pay direct to attorney for plaintiff the sum of $250 attorney's fees and $50 court costs, payable $30 per month, on the 15th day of each month, first payment October 15, 1956.' Execution having issued on September 14, 1959, for an unpaid balance of $186.54 owing upon the attorney fee, defendant filed under § 690.11, Code of Civil Procedure, ¹ a claim of exemption of his earnings for personal services rendered within 30 days next preceding levy of said execution. A hearing was had upon said claim and affidavits filed in opposition, resulting in said order allowing the claim of exemption.

Respondent has filed no brief and the cause is submitted pursuant to Rule 17(b) of Rules on Appeal.

Appellant's claim is that an award of an attorney's fee in a divorce proceeding partakes of the nature of an alimony award, being for the support of the wife, and is equally impervious to the exemption statute. The settled rule of this state with respect to an alimony award is stated in Bruton v. Tearle, 7 Cal.2d 48, 57, 59 P.2d 953, 957, 106 A.L.R. 580: 'We have shown that the judgment against defendant is a judgment for alimony. One of the characteristics of such a judgment is that as against said judgment the judgment debtor's earnings are not exempt from execution. Willen v. Willen, 121 Cal.App. 351, 354, 8 P.2d 942; Winter v. Winter, 95 Neb. 335, 145 N.W. 709, 50 L.R.A.,N.S., 697; Fanchier v. Gammill, 148 Miss. 723, 738, 114 So. 813, 814; Anderson v. Norvell-Shapleigh Hardware Co., 134 Mo.App. 188, 113 S.W. 733; 2 Schouler, Marriage, Divorce, Separation and Domestic Relations, 6th ed., pp. 1939, 1940.' The court immediately added: '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. One of such means frequently resorted to by the courts for the enforcement of an alimony judgment, which is not applicable to other judgments, is by proceeding in contempt upon the failure of the judgment debtor to comply with the decree. In the case of Fanchier v. Gammill, supra, the court points out the difference between an ordinary judgment for money or property and a judgment for alimony, and the reasons why more effective means may be resorted to by the courts in the enforcement of the latter class of judgments. In that case the court said: 'A judgment or decree for alimony carries with it a special power and right of enforcement not given in judgments at law. There is a difference between a judgment for money or property and that of a decree for alimony; and the decree for alimony, because of such difference in the character of the obligation, may be enforced by more efficient and effective means than those given to the enforcement of judgments at law.''

Rankins v. Rankins, 52 Cal.App.2d 231, 126 P.2d 125, involved the exemption claim of a defendant-husband who had remarried and claimed his wages were necessary for the support of a new family. Parenthetically, it is to be noted that no such factual situation is presented at bar; it does not appear that defendant has remarried and his claim of exemption says his earnings 'are necessary for the use of said defendant's family consisting of said defendant and his four children,' apparently the ones embraced in the above-mentioned support order. In Rankins the Bruton-Tearle rule is recognized and the court, dealing with the problems of two families, says at page 234 of 52 Cal.App.2d, at page 126 of 126 P.2d: 'It seems clear, therefore, that under the established decisions of this state defendant is not entitled to the exemption of this statute as against execution in the present proceeding. However, it must be remembered that this policy is established by judicial interpretation and not by specific statutory provision. In the case of Yager v. Yager, supra [7 Cal.2d 213, 220, 60 P.2d 422, 106 A.L.R. 664], we find this expression by the Supreme Court, referring to Code of Civil Procedure section 690.11: 'Within the meaning of this provision it may be said that the divorced wife and minor child of the first marriage, for whose support the husband has been ordered to pay a fixed sum, are in a sense members of his family entitled to participate with his second family in his earnings, and that the husband should not be permitted to urge the execution exemption against them. Our decision in Bruton v. Tearle, supra, [7 Cal.2d 48, 59 P.2d 953, 106 A.L.R. 580], expressly recognizes that in providing for the collection of the husband's future earnings by a receiver and their application to the delinquent alimony, the court would have power to direct the receiver to pay to the husband an amount necessary for his personal support. In such supplementary proceedings in the divorce action the court should have power to make an equitable division of the husband's earnings between his first wife and the children of that marriage, if any, on the one hand, and himself and his second wife and family on the other.' This would seem to be a necessary limitation upon the policy established by the hereinabove quoted decisions when the policy of the state as indicated by the exemption statute is considered in conjunction with the equally established policy of requiring support of minors. Obviously the husband cannot be deprived of the means of livelihood, even for the most solemn obligation to others. He cannot earn without eating. Equally, the second family, which is authorized by our laws, is entitled to support. The proper solution of this problem is that given by the Supreme Court in Yager v. Yager, supra. Unless there has been an abuse of discretion by the trial court in making such equitable division such action may not be disturbed on appeal.'

In Remondino v. Remondino, 41 Cal.App.2d 208, 106 P.2d 437, it is held that an alimony award is not dischargeable in bankruptcy. At page 214 of 41 Cal.App.2d, at page 441 of 106 P.2d: 'If, upon a consideration of the entire transaction the court determines that the purpose of the judgment for support money is to guarantee the economic safety of the wife by the husband, then his discharge in bankruptcy does not affect his liability under the judgment.'

The attorney fee award now under discussion was made as a part of the same order which awarded support for the wife and children. Though it runs in favor of the attorney, that fact does not alter its character as an award to enable the wife to establish her rights, as to support and otherwise, against the husband. See, Weil v. Superior Court, 97 Cal.App.2d 373, 376, 217 P.2d 975. In Marshank v. Superior Court, 180 Cal.App.2d 602, 4 Cal.Rptr. 593, 595, we quoted the Weil case as follows: 'The attorney's right to the amount allowed for counsel fees for his services rendered to a wife is no more proprietary and direct by virtue of section 137.7 of the Civil Code than before its enactment. That section provides that when...