Bickel v. Bickel
| Decision Date | 30 March 1972 |
| Docket Number | CA-CIV,No. 1,1 |
| Citation | 495 P.2d 154,17 Ariz.App. 29 |
| Parties | Gilda Patricia BICKEL, Appellant, v. Robert H. BICKEL, Appellee. 1714. |
| Court | Arizona Court of Appeals |
Sheldon Mitchell, Phoenix, for appellant.
Kenneth M. Arrick, Phoenix, for appellee.
Plaintiff-appellant brought an action for divorce. A judgment and decree of divorce were granted to the plaintiff against the defendant on October 17, 1969. Pursuant to said decree, defendant was ordered to pay directly to the plaintiff's attorney $3,530.40 for attorney's fees and costs and as security therefor plaintiff's attorney was awarded a lien in said amount upon the community residence of the parties awarded to the defendant under the decree of divorce.
Some seven months later, on April 15, 1970, as a result of a show cause hearing, due to the defendant's failure to pay the attorney's fees and costs as ordered, plaintiff's attorney was awarded a judgment against the defendant for $3,530.40. In aid of said judgment, on April 17, 1970, a Special Execution was issued to the Sheriff of Maricopa County, Arizona, directing the sale of the residence awarded to the defendant upon which the plaintiff's attorney had been awarded a lien under the divorce decree itself.
Thereafter, a properly noticed Sheriff's Sale was set for the 21st day of May, 1970. At said sale, plaintiff's attorney purchased the property for the amount of the judgment, plus costs and accrued interest. A Sheriff's Certificate of Sale on Foreclosure was given to the attorney as evidence of his purchase. A Sheriff's Deed was later issued for said property to him on December 22, 1970, and was recorded on December 31, 1970.
On January 5, 1971, a Writ of Assistance was issued to the Maricopa County Sheriff, which was obtained on petition of plaintiff's attorney to effectuate the removal of the defendant from the premises.
On January 18, 1971, the defendant obtained a temporary restraining order based upon his verified petition wherein the plaintiff and/or her attorney were restrained from removing the defendant from the premises.
Defendant had filed a Declaration of Homestead on December 1, 1969, almost two months after the entry of the decree of divorce. It purported to cover the property awarded to the defendant in the decree and upon which the plaintiff's attorney had been given a lien to secure the attorney's fees and costs awarded to him pursuant to the divorce decree.
On February 4, 1971, after a hearing, the Court entered an order permanently enjoining the plaintiff and/or her attorney from obtaining possession of the premises.
It is from this order that plaintiff appeals.
1. Was the defendant entitled to declare a homestead, and
2. Does a homestead declaration exempt from execution and sale the property upon which a lien was granted in the divorce decree to secure payment of the wife's attorney's fees?
Pursuant to A.R.S. § 25--371, the trial court ordered the defendant-appellee to pay his wife's attorney's fees and made them payable directly to the attorney. The statute further provides that:
'Any such order may be enforced by the court in the same manner as an order made on behalf of any party to the action.'
We will assure, Arguendo, that defendant was entitled to declare a homestead since we believe that the answer to the second question is dispositive of this appeal.
We find no Arizona cases directly in point, but believe a California decision to be very persuasive. The California court in Henry v. Henry, 182 Cal.App.2d 707, 6 Cal.Rptr. 418 (1960), offers a good discussion of the nature of the attorney fee award, pursuant to statutes very similar to Arizona's, and holds that the husband's Wages may not be exempt from a judgment for attorney's fees. We agree that attorney's fees are as much for the wife's support as payments made directly to her and the wage exemption statute, 690.11, California Code of Civil Procedure, has a similar purpose to Arizona's homestead exemption statute, with the wage statute intending to protect the debtor or his family.
The court in Henry pointed out the difference between a judgment for money or property and that of a decree for alimony. One of the characteristics of a judgment for alimony is that as against such judgment the judgment debtor's earnings are not exempt from execution. Bruton v. Tearle, 7 Cal.2d 48, 59 P.2d 953 (1936). In Henry the court rejected the defendant's claim that his earnings were 'necessary for the use of said defend...
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Marriage of Strong v. Strong
...as a form of spousal maintenance and, on that basis, have upheld the award against exempt property. See, e.g., Bickel v. Bickel (1972), 17 Ariz.App. 29, 495 P.2d 154, 156 (holding that where attorney's fees are awarded as part of the same dissolution decree awarding spousal support, award m......
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Burrows v. Burrows, 82913
...exempting pension payments from the claims of creditors do not apply to awards for alimony or child support.); Bickel v. Bickel, 17 Ariz.App. 29, 495 P.2d 154, 156 (1972) (Homestead exemption did not protect recovery of attorney's fees awarded as part of divorce decree awarding support.) Be......
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Argonaut Ins. Co. v. Lyons, 1
...but are in fact persons meant to be benefited as much as the recipient himself. Id. at 328, 660 P.2d at 1255. See Bickel v. Bickel, 17 Ariz.App. 29, 495 P.2d 154 (1972); Cardenas v. Cardenas, 478 A.2d 968 (R.I.1984); Stellar v. Stellar, 97 N.J.Super. 493, 235 A.2d 476 (1967); Donovan v. Don......
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Catlow, Matter of
...payments made directly to her ...", Johnson v. Johnson, 22 Ariz.App. 69, 71, 523 P.2d 515, 517 (1974) quoting Bickel v. Bickel, 17 Ariz.App. 29, 30-31, 495 P.2d 154, 155-56 (1972), and a decision to grant fees "is an adjudication of her need of such support in order to litigate with her hus......