McIntosh v. McIntosh

ELIZABETH THALEA McINTOSH, Plaintiff and Respondent, v. MAXIE RAYMOND McINTOSH, Defendant and Appellant.

COUNSEL

William H. Neblett and E. W. Miller for Defendant and Appellant. [209 Cal. App. 2d 375]

Lucas, Pino & Lucas and Malcolm M. Lucas for Plaintiff and Respondent.

OPINION

SHEPARD, J.

This is an appeal from an order denying defendant's claim of total exemption from execution of earnings.

Facts

An interlocutory judgment of divorce was entered on November 24, 1958 in favor of plaintiff against defendant. Included therein was an order for $125 per month support for plaintiff. A dispute arose over whether plaintiff had waived said support. On hearing of a contempt citation, trial decision was against defendant. Defendant sought writ of certiorari from this court and the Supreme Court. Both were denied. An order for attorney fees and costs was sought for the work of opposing such applications for writs of certiorari. After hearing, an order awarding $1,232.25 attorney fees and costs to plaintiff's attorneys was made. Execution was issued thereon May 11, 1961. Garnishment of one-half of defendant's weekly unpaid earnings was made. Defendant filed a declaration that all of said earnings were necessary for the support of defendant's family residing in this state. An opposition declaration was filed on behalf of plaintiff. On hearing, defendant's claim of exemption was denied. Defendant appeals.

Defendant claims the trial court was in error in not ordering total release of defendant's earnings. He cites no authorities.

[1] The rule is well established that the exemption provided by Code of Civil Procedure section 690.11 does not apply to alimony or the means of its enforcement. Attorney fees and costs are a means of enforcement. The whole matter is sufficiently discussed in Henry v. Henry, 182 Cal. App. 2d 707 [6 Cal. Rptr. 418] and the authorities therein cited.

Questions relating to the validity of said alleged waiver are resolved in our opinion in McIntosh v. McIntosh, ante, p. 371 [26 Cal. Rptr. 26] No. 6855, filed this day in this court.

The order is affirmed.

Griffin, P. J., and Coughlin, J., concurred.