Arnold v. Arnold

• Decision Date: 08 March 1966
• Docket Number: No. 51972,51972
• Citation: 140 N.W.2d 874,258 Iowa 850
• Parties: Sylvia C. ARNOLD, Appellee, v. Eugene A. ARNOLD, Appellant.
• Court: Iowa Supreme Court

Page 874

140 N.W.2d 874

258 Iowa 850

Sylvia C. ARNOLD, Appellee, v. Eugene A. ARNOLD, Appellant.

No. 51972.

Supreme Court of Iowa.

March 8, 1966.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, for appellant.

Richard C. Turner, Council Bluffs, for appellee.

RAWLINGS, Justice.

Appeal by defendant from a supplemental judgment entered in the trial court following issuance of procedendo on prior appeal. Arnold v. Arnold, Iowa, 133 N.W.2d 53.

He now contends the supplemental judgment did not comply with the mandate of this court.

The original decree entered September 27, 1963, so far as is here material, provided as follows: That defendant pay $180 each month for support of three children, commencing October 1963, vested title to the home property in plaintiff and ordered defendant to satisfy the first half of half of taxes for 1962, payable January 1, 1963; gave to plaintiff all household goods and ordered defendant to pay any purchase price balance owing on any of it; gave to plaintiff a 1959 automobile; granted plaintiff judgment against defendant in the sum of $43,000, payable $1000 forthwith, the balance with interest at five percent, payable $332.14 each month, commencing October 1963, with defendant to deposit one-third of his capital stock in Arnold Tool and Die Works, Inc. as security; and that defendant pay $4000 forthwith, out of which $3500 be paid to plaintiff's attorney, the balance of $500 to be used first for payment of court costs, any remainder being payable to plaintiff's attorney to defer costs of suit incurred.

On appeal this court affirmed the decree with the following modifications. We also ordered that plaintiff have alimony of $250 each month until her remarriage, or until plaintiff or defendant shall die; that defendant pay the first and second half of taxes for 1962 on the home property; allowed an additional total fee of $1000 to plaintiff's attorney for services on appeals; ordered that defendant pay plaintiff, not to exceed $200 investigator's fee and $225 for services of her accountant. No reductions were ordered as to any awards made to plaintiff. Costs were taxed to defendant. On March 13, 1965, procedendo issued.

By supplemental decree entered ex parte May 13, 1965, the trial court found that on April 15, 1965, defendant had paid a total sum of $5420.47 owing, but $2442.51 was still past due. The court then added to this amount interest at five percent from September 27, 1963, until payment date for the following: $3500 district court attorney fees; $225 accountant fees; and $200 investigator fees. This total interest allowed was $303.47. Also the court ordered defendant to pay like interest from the same date on $1000 allowed as part of the property settlement; on $302.40 purchase balance owing on a stereo; and on $145.83 second half taxes. The total interest here allowed to May 13, 1965, was $119.23. This computed interest, added to the sum of $2442.51, made a total of $2865.21, and the trial court entered judgment against defendant accordingly, with interest thereon at five percent until paid.

Finally, the trial court made provision for a writ of attachment to issue on all of defendant's stock in Arnold Tool and Die Works, Inc. to be deposited with the clerk of court until compliance with security provisions of the decree.

I. In Iowa-Illinois Gas and Electric Company v. Gaffney, 256 Iowa 1029, 129 N.W.2d 832, 838, we said: 'It is well settled that the district court after remand has no power or jurisdiction to do anything except to proceed in accordance with the mandate.' See also 27A C.J.S. Divorce § 195(4), page 852, and Nelson on Divorce and Annulment, Second Ed., section 30.13.

It is evident the trial court, in unquestioned good faith but nevertheless erroneously here failed in some respects to comply with this precept.

II. We shall deal first with the matter of interest allowances made by the trial court in the supplemental decree.

At common law, judgments do not bear interest. 47 C.J.S. Interest § 21, page 33, and 30 Am.Jur., Rev. Ed., section 24, page 22.

However, section 535.3, Code, 1962, provides in part: 'Interest shall be allowed on all money due on judgments and decrees of courts at the rate of five cents on the hundred by the year, * * *.'

It is at once apparent this statute makes no distinction between judgments entered in law actions and those entered in equity cases. Furthermore, we find no basis for differentation. Johnson v. Hazen, 333 Mass. 636, 132 N.E.2d 391, 393, 54 A.L.R.2d 810; 30 Am.Jur., Rev. Ed., Interest, section 24, page 22; and 47 C.J.S. Interest § 3, page 13.

In fact, past pronouncements by this court affirmatively disclose any lawful monetary award made in the final determination of a divorce action has the essential qualities of a judgment and may be enforced by execution. Whittier v. Whittier, 237 Iowa 655, 661-662, 23 N.W.2d 435. See also 17 Am.Jur., Rev. Ed., Divorce and Separation, section 778, page 802.

We are satisfied fixed awards of money for child support, alimony, and property settlement draw interest at five percent per annum from date of judgment, or in case of specified periodic payments from the date each such payment becomes due and owing. Code section 535.3; Whittier v. Whittier, supra; Riemenschneider v. Riemenschneider, 239 Iowa 617, 634, 30 N.W.2d 769, 32 N.W.2d 68; Parker v. Parker, 155 Neb. 325, 326, 51 N.W.2d 753, 756; Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139; Shuff v. Fulte, 344 Ill.App. 157, 100 N.E.2d 502; McKay v. McKay, 13 Utah 2d 187, 370 P.2d 358; Howard v. Howard, 142 Cal.App.2d 222, 298 P.2d 48; Bickle v. Bickle, 196 Minn. 392, 265 N.W. 276; Harden v. Harden, 191 Okl. 698, 130 P.2d 311; 47 C.J.S. Interest § 21, pages 33-35; 27B C.J.S. Divorce § 377, page 872; 30 Am.Jur., Rev. Ed., Interest, section 24, page 22; and Nelson on Divorce and Annulment, Second Ed., section 14.73. See also Annos. 1 A.L.R.2d 521 and 33 A.L.R.2d 1455. Furthermore this rule applies even though the judgment itself fails to make reference to the matter of interest. Carter v. McHaney, Tex.Civ.App., 373 S.W.2d 82, 86, and McCormack v. McCormack, 220 Miss. 116, 70 So.2d 333, 72 So.2d 199.

So, in the case now before us, any specific monetary award granted plaintiff by the trial court in the original adjudication constituted an enforceable judgment.

III. Defendant contends attorney fees allowed in connection with a divorce decree are in the nature of court costs and draw no interest.

In support of this claim he refers to Main v. Main, 168 Iowa 353, 150 N.W. 590. So far as is here material, the court in that case simply held attorney fees in a divorce action may be taxed as part of the costs. Otherwise it tends to support plaintiff's position.

He also leans rather heavily upon Wilson v. Wilson, 40 Iowa 230, but in that case we simply held an attorney fee allowed as part of the court costs was not a lien upon a homestead. That question is not now before us.

In the case with which we are here concerned, the fee award for plaintiff's attorney was not taxed by the trial court as part of the costs, but such is really a matter of little or no consequence. Hoyt v. Beach, 104 Iowa 257, 260, 73 N.W. 492, 493, is squarely in point and this court there said: 'Money due on a judgment for costs is as much money due on a judgment as is money due on a judgment for damages, and this is true whether such costs embrace the fees of witnesses or officers or attorney's fees.' (Emphasis supplied.) We are satisfied this is the proper rule.

Actually, the trial court, in awarding fees for plaintiff's attorney, ordered payment be made to the clerk of court with the sum allowed, when received by the clerk, to be then paid to plaintiff's counsel. This was entirely proper and still constituted an award to and for the benefit of plaintiff. 27B C.J.S. Divorce § 250(2) b, page 47; 20 C.J.S. Costs § 218 a, b, pages 455-460; 17 Am.Jur., Rev. Ed., Divorce and Separation, section 632, page 707; and Nelson on Divorce and Annulment, Second Ed. section 29.09.

Defendant does not challenge the amount of attorney fees allowed in the case with which we are here concerned. He only claims such an award can draw no interest.

We are persuaded otherwise and conclude the judgment for attorney fees lawfully allowed by the trial court drew the statutory rate of interest from date of original decree.

IV. Having determined a judgment or decree in a divorce action awarding money in a sum or sums certain or capable of ascertainment from the judgment or decree draw interest until paid, we proceed next to a consideration of the effect an appeal may have upon right to such interest.

At the outset we are satisfied an appeal by the losing party from final adjudication in a divorce action, which results in affirmance of judgment entered by the trial court, does not alter the right of a party benefited by a monetary award to have interest from date of original judgment, absent special circumstances compelling otherwise.

Any holding to the contrary would permit a judgment debtor to delay payment date by appeal, and in the meantime have use of money to which a judgment creditor was lawfully entitled.

However, in the case now before us both parties challenged the original adjudication by cross appeals. We then approved the decree entered by the trial court and allowed plaintiff an additional alimony award of $250 each month, with other incidental relief.

The specific question now presented is whether the taking of or participating in an appeal by a judgment creditor in a divorce action which results in affirmance with some additional allowances serves to suspend the right of such judgment creditor to interest on any specific original awards.

Ordinarily, the matter of suspension of interest pending appeal is governed by the nature of the case and results obtained. And, if appeal by a judgment creditor in a divorce action results in affirmance with...