Bohl v. Bohl, 55263

• Decision Date: 21 October 1983
• Docket Number: No. 55263,55263
• Citation: 234 Kan. 227,670 P.2d 1344
• Parties: Nancy Lou BOHL, Appellee, v. Robert J. BOHL, Appellant.
• Court: Kansas Supreme Court

Page 1344

670 P.2d 1344

234 Kan. 227

Nancy Lou BOHL, Appellee, v. Robert J. BOHL, Appellant.

No. 55263.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. The officer to whom a writ of execution is directed shall seize only non-exempt property of a judgment debtor. Therefore, when a debtor claims a homestead exemption the officer must refuse to levy execution until the status of the property is judicially determined.

2. The distinction between alimony and a property division is irrelevant when considering the imposition of a lien on a homestead.

3. A homestead right which arises after a lien is imposed on the real estate is subject to the lien. The effective date of the lien is determined by K.S.A. 1982 Supp. 60-2202.

Charles S. Fisher, Jr., of Fisher, Ochs & Heck, P.A., Topeka, argued the cause and Ann L. Hoover, Topeka, of the same firm, was with him on briefs, for appellant.

John W. Brand, of Stevens, Brand, Lungstrum, Golden & Winter, Lawrence, argued the cause and Gerald L. Goodell, of Goodell, Stratton, Edmonds, Palmer & Wright, Topeka, was with him on brief, for appellee.

HERD, Justice:

This is an appeal from a post-trial order in a divorce action. The order grew out of the court's division of the marital property. The trial court decision was appealed to this court and affirmed as modified in an opinion filed January 14, 1983, entitled Bohl v. Bohl, 232 Kan. 557, 657 P.2d 1106 (1983). The issue raised by this appeal is whether the trial court erred in ruling Robert Bohl, defendant/appellant, could not assert a homestead right to a part of the marital property assigned to him and thus avoid forced sale thereof to satisfy Nancy Bohl's, plaintiff/appellee, lien thereon.

The facts of this case are fully set out in Bohl v. Bohl, 232 Kan. 557, 657 P.2d 1106, and will not be here repeated. Suffice it to say this court affirmed the trial court's division of property between Nancy Bohl and Robert Bohl. The property division awarded a house on Arrowhead Drive, Topeka, to Robert Bohl. Nancy Bohl was awarded the family home on Burlingame Road, Topeka. In equalizing the division of property between the parties, the trial court awarded Nancy Bohl a money judgment in the amount of $890,217 in lieu of other property.

The trial court order dividing the family property was filed January 21, 1982. The order expressly awarded Nancy Bohl a judicial lien upon the common stock of the M.W. Watson Company, which was given to Robert Bohl. On February 13, 1982, Robert Bohl remarried and with his new wife and her daughter moved into the house on Arrowhead Drive.

A motion for a new trial was denied on March 4, 1982. At that same time the court granted Nancy Bohl's motion to modify its decree and imposed a judicial lien in favor of Nancy Bohl upon all of the real estate awarded to Robert Bohl. Thereafter, on April 15, 1982, Robert Bohl filed his notice of appeal in Bohl I.

Robert Bohl was unable to obtain a supersedeas bond. He moved the court to waive the bond and grant a stay of execution pending the determination of the appeal. The stay was denied. Nancy Bohl filed her first praecipe for execution on April 20, 1982, and on September 16, 1982, filed another one. In the second praecipe she directed execution upon the house on Arrowhead Drive as well as on other property of Robert Bohl. On September 17, 1982, Robert Bohl and Janet Bohl, the second wife, designated the house on Arrowhead Drive as their homestead pursuant to K.S.A. 1982 Supp. 60-2302. Upon request of Nancy Bohl for a determination of Robert and Janet Bohl's homestead rights in the Arrowhead Drive property, the trial court ruled on October 22, 1982, that the homestead rights did not preclude levying execution on the Arrowhead Drive property to satisfy the judgment lien of Nancy Bohl. Robert Bohl appealed the order in December 1982. In the meantime, Nancy Bohl continued her efforts to levy upon the real estate. She proceeded to publish notice of sale to be held January 21, 1983. After the decision in Bohl I was handed down January 14, 1983, the trial court ordered a temporary stay of the judicial sale pending further hearings pursuant to that opinion.

There are two issues presented in this appeal. Robert Bohl first argues the trial court lacked jurisdiction to determine his homestead claim because the property had not been attached, levied upon and the judgment returned unsatisfied.

We first examine the procedure used by Nancy Bohl. She filed two praecipes for execution against the Arrowhead property in September of 1982. In both instances a writ of execution was issued by the court pursuant to K.S.A. 60-2401. At this juncture Robert Bohl intervened by apprising the sheriff he claimed a homestead exemption in the property. K.S.A. 60-2401(a) is applicable and defines a general execution as "a direction to an officer to seize any non-exempt property of a judgment debtor ...." The sheriff acted responsibly and refused to levy execution until a determination was made of the validity of the homestead claim. See Brooks v. Marquess, 157 Kan. 244, 248, 139 P.2d 395 (1943), where this court held a sheriff properly refrained from serving a writ of execution after he was given a timely notice by the judgment debtor the property sought to be subjected to execution was his homestead. This made the homestead claim subject to judicial determination at that time. This case is similar. The execution had proceeded as far as it should have until the exempt status of the property was judicially determined. A trial court's jurisdiction over such matters is not dependent upon a sheriff's return of the writ of execution with no goods found. Until the exemption issue is resolved, the sheriff cannot make a valid return. This issue is without merit.

We next turn to the substantive issue of whether Robert and Janet Bohl's homestead claim rendered the Arrowhead Drive property exempt from Nancy Bohl's judgment lien.

The constitutional right to a homestead exemption finds its statutory implementation in K.S.A. 1982 Supp. 60-2301, where it is provided:

"A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, or a mobile home, occupied as a residence by the owner or by the family of the owner, or by both the owner and family thereof, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon. The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife, when that relation exists."

Robert Bohl properly designated his claim of homestead as provided in K.S.A. 1982 Supp. 60-2302. Exemption statutes are generally held to be subjects of liberal construction in order to accomplish their remedial purpose. The purpose of the homestead and other exemptions is to insure a debtor and his family the means to avoid absolute destitution. See In re Estate of Johnson,...