Plаintiff procured a final decree of divorce from defendant in. 1942 by the terms of which plaintiff was awarded the custody of a daughter, Barbara, and defendant the custody of a son, Craig. The decree ordered defendant to pay plaintiff $50 a month for his daughter’s support. Payments were made in full under this decree to January, 1946J but no payments were made thereafter. In October, 1949, plaintiff served and filed a notice of motion for execution on these unpaid instalments, supported by plaintiff’s affidavit. Before this motion was heard plaintiff madе an ex parte application for execution and execution was ordered issued upon this application on November 4, 1949. Defendant opposed the notiсed motion and after a hearing the court on November 14, 1949, ordered execution to issue with the following qualification: “that said Order for Issuance of Execution be stayed until a final аdverse determination be made as to the validity of an Ex Parte Order made herein for issuance of execution under Section 681, C.C.P. on November 4th, 1949.”
Defendant moved to quash the ordеr for execution made ex parte and this motion to quash was denied on December 13. From the order for issuance of execution of November 14 and the order of December 13 denying his motion to quash defendant has appealed. Since the order of November 14 is by its own terms stayed until the order of November 4 is invalidated it will not be necessary to considеr the order of November 14 further if we determine that the order of December 13 refusing to quash the writ of execution issued November 4 .must be affirmed.
Defendant attacks the ex parte order of November 4 on the ground that the judgment being over five years old execution could only issue after a noticed motion supported by a showing of diligence under Code of Civil Prоcedure, section 685. Since all the instalments for which execution issued accrued within five years of the date of the ex parte application the rule announced in
Lohman
v.
Lohman,
Defendant attempted on his motion to quash to show equitable grounds sufficient to bar the plaintiff’s right to execution.
(Lohman
v.
Lohman, supra,
We need not decide whether this showing if unсontroverted would be such as to compel the court as a matter of law to order the execution to be quashed, because this version of the facts was controverted in important particulars.
The divergent versions of plaintiff and defendant are highlighted by the following quotations from their affidavits before the court in passing upon the two motions. The plaintiff’s affidavit recites:
“That on or about the 27th day of December, 1945, a discussion was had between plaintiff’s present husband and defendant concerning a consent by defendant to thе adoption by plaintiff’s present husband of the said minor child, Barbara Millard; that at said time, defendant agreed that he believed *252 that it would be to the said child’s best interests if such an adoрtion was made, and agreed that he would give his written consent thereto; that plaintiff’s present husband then stated that if defendant would so consent to such an adoption, in writing, he the said dеfendant would no longer be required to make the payment required of him to be made to affiant for the support and maintenance of said minor child Barbara Millard; that said agrеement was entirely oral; that defendant subsequently refused to give his written consent to such an adoption unless affiant consent to an adoption by defendant’s present wife of another minor child of plaintiff and defendant; that affiant refused to consent to this and defendant thereupon discontinued making payments for the support of Barbara Millard, the minor dаughter of the parties hereto, as required by the provisions of the order heretofore set out, and has refused and still refuses to comply with the terms of said order. ’ ’
In contrast we quote from defendant’s affidavit:
‘ ‘ That defendant аlleges, contrary to the hereinbefore mentioned affidavits of plaintiff, that the discussion between the parties on the 27th day of December, 1945, resulted, in addition (to) the representations that defendant would no longer be expected to comply with the said order, in a mutual agreement that defendant would consent to the adoption of Barbara Millаrd by plaintiff’s present husband and that plaintiff would consent to the adoption of Craig Millard, the other minor child of the parties, by defendant’s present wife; that this agreement was sepаrate and apart from the agreement between plaintiff and defendant that defendant would no longer be required to forward the support money payments; that defendant relied upon the agreement concerning the mutual adoptions and within four (4) months thereafter instructed his attorney to take the necessary steps to procure the adoрtion of Craig Millard by defendant’s present wife; that said proceeding was instituted in the Superior Court of the State of California, in and for the County of San Mateo on the 23rd day of May, 1946, and was dismissed in September of 1946, at the request of the petitioner, Vera Edith Millard, after plaintiff refused to consent thereto; that although no petition for the adoption of Barbara Millard was filed from December, 1945, until the date hereof, defendant has remained willing to consent to the adoption by plaintiff’s present husband. ’ ’
*253
We must assume in support of the challengеd orders that the trial judge found the facts most favorable to plaintiff and it is elementary that on appeal not only must all conflicts in the evidence be resolved in favor of thе court’s orders but where there is room for conflicting inferences the inferences most favorable to those orders must be drawn.
(Wright
v.
Delta Properties, Inc.,
Following this settled rule we must assume that the trial judge found thаt the promise to waive future payments under the decree was only to become operative on defendant’s giving his written consent to the adoption of his daughter and was not an independent promise as stated in defendant’s affidavit; that it was not a part of this oral agreement that plaintiff would give her consent to the adoption of her son by defendant’s wife, but that in violation of his agreement to give his written consent to his daughter’s adoption defendant nevertheless refused to give such consent unless plaintiff would give her written consеnt to the adoption of her son; and that following plaintiff’s refusal to give such consent defendant thereafter refused to make any further payments under the decree. In this view of thе facts defendant’s tardy execution and mailing of such written consent after proceedings to secure execution had been instituted might reasonably be considered by the trial judgе as a belated attempt to secure the benefits of an agreement which defendant had theretofore repudiated because of plaintiff’s refusal to consent tо the adoption of her son by defendant’s wife.
The order denying defendant’s motion to recall and quash the writ of execution is affirmed. The order of November 14, 1949, is inoperative by its own tеrms until the order for execution of November 4 is declared invalid and since that contingency will not occur the appeal from that order presents a moot question. The appeal from the order of November 14, 1949, is accordingly dismissed.
Schottky, J. pro tem., concurred.
Appellant’s petition for a hearing by the Supreme Court was denied April 12, 1951,