Opinion
Hearing Granted Feb. 6, 1941
Appeal from Superior Court, Los Angeles County; Clarence M. Hanson, Judge.
Action by Lillian Anchors against Don L. Anchors, to recover a judgment for installments of maintenance and support money alleged to have accrued under the provisions of a Missouri decree of divorce. From summary judgment in favor of the plaintiff, the defendant appeals.
Judgment reversed. COUNSEL
W.I. Gilbert, Jr., of Los Angeles, for appellant.
Joseph Lewis, of Los Angeles, for respondent.
OPINION
WOOD, Justice.
Plaintiff commenced this action on July 5, 1939, for the purpose of recovering a judgment for installments of maintenance and support money alleged to have accrued under the provisions of a decree of divorce previously obtained in the state of Missouri. Defendant filed an answer and thereafter plaintiff filed a motion for a summary judgment, supported by her affidavits. Defendant filed counter affidavits and thereafter a summary judgment was entered in favor of plaintiff for the sum of $10,280 with interest at 8 per cent per annum from July 5, 1934. Defendant appeals from the summary judgment.
Plaintiff alleged in her complaint that in a divorce action pending in the circuit court of Jackson county, Missouri, the court on June 15, 1926, rendered a judgment that "Lillian Anchors do have and recover of and from Don L. Anchors the sum of $40 per week for the support and maintenance" of the three minor children of plaintiff and defendant; that the said children of the parties have been in the care and custody of plaintiff since June 15, 1926; that said judgment remains wholly unsatisfied except for the sum of $1,500; that defendant came to the state of California on or about January 1, 1935. Plaintiff asked for judgment in the sum of $24,540 and interest. In his answer defendant denied the allegation that the Missouri judgment was unsatisfied except for the sum of $1,500. He also made a general denial of the allegations concerning the rendition of the judgment in Missouri.
A motion for a summary judgment in the sum of $25,540, which was supported by plaintiff’s affidavit, was denied without prejudice and another motion was made for a summary judgment in the sum of $10,280 for the period of five years, less three weeks, supported by an additional affidavit. To her affidavits plaintiff attached a certified copy of the decree of the Missouri court. Immediately after the copy of the decree the following appears over the certificate of the judge and the clerk of the court: "A Credit given this entry, which appears on the margin of the record, is in words and figures as follows, to-wit: ‘March 11, 1930, This Judgment given a credit for $90.50 under sheriff’s sale on execution.’ " In her first affidavit plaintiff stated that defendant had failed to pay any sum pursuant to the decree of divorce except the sum of $1,500; that she had had the custody of the children of the parties from January 15, 1926, to the date of the affidavit; that defendant had filed the action for divorce in Missouri but that his complaint had been dismissed and that the court had ordered defendant to pay the sum of $40 per week for the support of the minor children; that she could testify competently to all of these things. In her second affidavit plaintiff stated, among other things, that on January 28, 1927, defendant "filed suit" in Missouri to have the "decree of alimony reduced and signed said petition in his own handwriting before filing same"; that defendant did not prosecute "said suit" and that "nothing appears on record in said Kansas City court other than the said petition, which asked for a modification of the said court order made on the 15th day of June, 1926, in said action numbered 242133 requiring him to pay your affiant the sum of $40.00 per week for the support and maintenance of the parties hereto"; that plaintiff if sworn as a witness could testify competently to these facts.
Defendant also presented two affidavits. In these he stated that he does not owe to plaintiff any sum whatever whether or not he be given credit for $1,500; that the three children of the parties had all become of legal age before the commencement of the present action, their ages now being 28, 24 and 21 respectively; that he resided continuously in Missouri until the summer of 1930, at which time he moved to Los Angeles; that he had paid for the support of the children during the three years following June 15, 1926, a sum approximating $5,000; he denied on information and belief that the order referred to in plaintiff’s affidavit was made by the Missouri court, denied that if any decree of divorce was rendered it has remained unmodified, and denied that plaintiff could competently testify of her own personal knowledge to the matters set forth in her own affidavits. With the exception of certain statements concerning the execution sale hereinafter referred to, the other matters set forth in the affidavits of the parties are of no importance in the present discussion.
The question for determination is whether the affidavits make a showing sufficient to present a triable issue of fact. Sec. 437c Code Civ.Proc. For the purpose of the motion the allegations of defendant’s affidavits must be accepted as true, and if these allegations present matters which if true would constitute a defense the motion of plaintiff for a summary judgment should have been denied. 6 Cal.Jur., 10-Year Supp., p. 790, and cases there cited. Both the pleadings and the affidavits of the parties present a sharp conflict in the matter of the allegations concerning the amount of the payments which defendant had made. Plaintiff asserts that she could testify competently to the record of the Missouri court and that the judgment had not been modified. This assertion is denied by defendant. Clearly the Missouri records would be the best evidence and plaintiff could not "competently testify thereto". Section 437c, Code of Civil Procedure, provides in part: "The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff [or defendant] to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto. ***"
Defendant contends that under the laws of the state of Missouri there can be no recovery in this action on the judgment which forms the basis of the complaint. The effect of a judicial record of the state of Missouri is the same in California as in Missouri (sec. 1913, Code Civ.Proc.) and we must look to the laws of Missouri in determining the effect of the judgment a copy of which accompanies plaintiff’s affidavit. In doing so we must be guided by the interpretation placed upon its laws by the highest tribunal of Missouri. Sec. 1875, subd. 3, Code Civ.Proc.
The Missouri statute bearing upon the question before us is section 886, Revised Statutes 1929, Mo.St.Ann. § 886, p. 1168, It is there provided: "Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever."
From the certified copy of the decree of the Missouri court it appears that the judgment was rendered on June 15, 1926, more than 10 years before the commencement of the present action. The only notation "duly entered upon the record" of the judgment was the credit of $90.50, which was a credit under a "sheriff’s sale on execution". Manifestly this was not a voluntary payment.
It appears from the decision in Mayes v. Mayes, 342 Mo. 401, 116 S.W.2d 1, that the highest tribunal of the state of Missouri has decided the points which are presented touching the Missouri judgment. In that case the plaintiff was given a judgment of divorce on May 7, 1920, and was given the custody of the children of the parties and an allowance of $25 per month for the support of the children. Although there was some question as to whether the allowance was for alimony or child support the court held that if the judgment be treated as being for "child support" the decision would be the same. Immediately after the entry of the decree the defendant left Missouri and went to California. In December, 1935, the defendant received an inheritance of property in Missouri and the plaintiff obtained a writ of execution to enforce the judgment of May 7, 1920. A motion to quash the execution was made on the ground that more than 10 years had elapsed since the rendition of the judgment and there had been no revival of the judgment. In affirming the order of the trial court granting the motion to quash the execution the Supreme Court pointed out that the Missouri statute which has been above quoted must be considered together with other statutes which provide that at any time within 10 years action to revive the judgment could be taken. The court said: "It has several times been held in this state that a judgment for alimony, whether in gross or payable in periodical installments, is subject to the same incidents as other judgments in actions at law and becomes dormant ten years after rendition unless kept alive by payments within such period or by revival." It was brought out in the evidence that while the defendant Mayes was in Los Angeles he "was prosecuted under some (apparently penal) statute of California, was convicted and sentenced to penal servitude, and was paroled on condition that he make certain contributions toward the support of his child, which, acting under such compulsion, he for a time made". The court considered the effect of the payment so made and held that they would not toll the statute. Concerning the provision that if a payment be made the 10-year period within which execution may issue runs from the date of the last payment, the court held that "this means that such payment, in order to extend the time, must have been made voluntarily or under and pursuant to the judgment or decree in the divorce case".
A decision by the Kansas City court of appeals, Eubank v. Eubank, Mo.App., 29 S.W.2d 212, sustains the contention of defendant. In that case the plaintiff on December 22, 1915, obtained a decree of divorce and judgment for alimony in the sum of $15 per month. At the time the decree was entered the plaintiff and the defendant were tenants in common of a life estate in certain real property and on December 28, 1915, the defendant conveyed his record title to the property to a third party. Notwithstanding this transfer the plaintiff through her agents collected rents from the property from time to time up to and including February, 1929. No credits were entered upon the judgment until October 7, 1929, when the plaintiff’s counsel made this entry upon the record: "Payment of $15 per month made from January 1-16 up to and including the month of December, 1922; signed Mary Eubank by Garrett & Ruark, her attorneys." The defendant at no time authorized any person to collect the rents or to pay any of the benefits to the plaintiff. An execution was issued on the original judgment on October 7, 1929, and the defendant thereupon filed a motion to quash the execution. The trial court denied the motion to quash but the reviewing court reversed the order, basing its judgment upon the statute herein discussed, and held: "It is not the indorsement of the credit, but the payment, which operates as a renewal of a promise and removes the bar of the statute; that the party relying on a payment to stop the running of the statute must not only establish that it was made, but that it was made by authority of the defendant, is the rule. Regan v. Williams, 185 Mo. 620, 84 S.W. 959, 105 Am.St.Rep. 600. The record discloses no proof showing, or tending to show, that defendant ever voluntarily made or authorized any payment to be made on the judgment which plaintiff is endeavoring to enforce."
It appears from the affidavits and from an order of the Missouri court which is before us that on May 26, 1929, defendant established a trust for the benefit of two of his minor children and his second wife. This was done by the endorsement and transfer of a secured promissory note to a trustee with directions to turn over part of the payments to be received on the note to plaintiff for the benefit of the two named minor children and part to his second wife, Margaret Anchors. The total payments for the benefit of the two minor children were to be in the sum of $12.50 per week. Thereafter plaintiff applied for and received from the Missouri court an order declaring the transfer of the note to the trustee to be in fraud of plaintiff’s rights and ordering that the note be subject to seizure on execution. Apparently the "credit" notation on the judgment resulted from the sale of this property. It cannot in any sense be considered a "payment" by defendant. In view of the decisions of the Missouri court above referred to, it is not reasonable to argue that a forced sale of a litigant’s property under execution would constitute such a "payment" as would toll the statute. Indeed, it was not so considered when the notation of the credit was made "upon the record". Since no payment was made thereon it must be held that under the terms of the statute in question the judgment is "conclusively presumed to be paid" and that no suit can be "maintained thereon for any purpose whatever".
The judgment is reversed.
We concur: MOORE, P.J.; McCOMB, J.