The opinion
SCHAUER, J.
I concur in the judgment of reversal. I think that the decree, properly construed, finally disposed of all community property. Among other things, it awarded $625 to defendant. This award was unconditional but plaintiff was expressly allowed two years within which to make the payment, before defendant could have execution to collect it. Subject to making such payment, and otherwise equally unconditionally, the property in question was awarded to' plaintiff. There was no alternative for either the award of the money or the award of the property. All community interests and rights of the parties were completely determined by this judgment.
The effect of the provisions of the judgment is that the property was awarded to plaintiff but subjected to a lien to secure payment of the sum awarded defendant. The judg *333 ment did not declare that time was of the essence of any of its provisions or that any rights therein created or determined were to be divested by lapse of time or any other occurrence. The two-year period was, in a sense, a stay of execution; at any time after the two years and within five years thereafter defendant could have had execution issue as of course. Likewise, either within the two years or within five years thereafter, plaintiff could, as of course, have paid the $625 with legal interest and have had the property cleared of the lien.
It seems to me to be unsound law and undesirable policy to require, as do a concurring majority, that the parties engage in new and independent litigation to resettle their property rights. Those rights have been once fully determined and the judgment making such determination has become final. If new litigation such as the majority suggest had been instituted within five years from entry of the judgment would not a plea of res judicata have been unanswerable? If the rights were res judicata then, by what process have they since become not res judicata? The parties have suggested and research has disclosed no prior case in California wherein, after full determination of community property rights in a judgment of divorce which has become final, this court has ordered the parties to relitigate their rights in an independent action.
I think that the judgment, long since final, cannot now be modified either in respect to its effect on the status of the parties or its allocation of property rights. The only question, as I see it, is one relating to enforcement. Can it now be enforced by plaintiff? In view of the fact that defendant at any time after the two-year stay and within five years thereafter could have had, as of course, and thereafter upon a reasonable showing, execution to enforce the judgment, and failed to ask its enforcement, I fail to see how she is prejudiced by the delay of plaintiff in making a tender of full performance on his part. Having security for eventual payment it is conceivable that she may have preferred to keep the $625 accumulating interest at the legal rate of 7 per cent per annum. There is no contention that she has not accepted other provisions of the judgment which went to her benefit. Under the circumstances I think that not only did the trial court have power to enforce the judgment, but that its failure to do so constitutes an abuse of judicial discretion.
*334 For the reasons above stated I concur in the judgment of reversal.
Spence, J., concurred.
Appellant’s petition for a rehearing was denied December 7, 1950. Schauer, J., and Spence, J., voted for a rehearing.