Boudwin v. Boudwin

• Decision Date: 05 November 1930
• Docket Number: 22670.
• Citation: 292 P. 1017,159 Wash. 262
• Parties: BOUDWIN v. BOUDWIN.
• Court: Washington Supreme Court

292 P. 1017

159 Wash. 262

BOUDWIN v. BOUDWIN.

No. 22670.

Supreme Court of Washington

November 5, 1930

Department 2.

Appeal from Superior Court, King County; William J. Steinert, Judge.

Divorce suit by Abigail Boudwin against Charles B. Boudwin in which plaintiff recovered divorce decree and was awarded alimony for support of herself and her children. Subsequently, a garnishment proceeding was commenced by plaintiff in which Bernice Boudwin was made garnishee. Defendant moved to quash the writ of garnishment, and, from an order quashing the writ, plaintiff appeals.

Reversed with instructions.

Riddell Brackett & Fowler, of Seattle, for appellant.

Arthur C. Bannon, of Seattle, for respondent.

BEALS J.

The parties to this proceeding were for some years prior to 1919 husband and wife. May 9, 1919, by decree of the superior court for King county entered in this action, the parties were divorced. The care and custody of their three minor children was awarded to plaintiff, Abigail Boudwin, the decree further providing 'that the plaintiff, Abigail Boudwin, be, and she is hereby awarded a judgment against the defendant, Charles B. Boudwin, in the sum of one hundred and fifty ($150.00) dollars per month until the further order of the court, payable on the 10th day of each and every month, beginning on the 10th day of June 1919, fifty dollars ($50.00) of which is to be paid for the support of the plaintiff, and one hundred dollars ($100.00) of which is for the support, use and benefit of the said children, all of which is to be paid to the said plaintiff.'

It appears from the record that February 1, 1930 plaintiff's attorney filed in the office of the clerk of the superior court his affidavit stating 'that the plaintiff has a judgment against the defendant in the approximate sum of $14,000, together with interest thereon; that the same is just, due and unpaid; that plaintiff has reason to believe and does believe that Mrs. Bernice Boudwin is indebted to said defendant and has in her possession and under her control personal property and other effects belonging to the said defendant,' which affidavit was filed for the purpose of procuring a writ of garnishment directed to Mrs. Bernice Boudwin. The writ was issued and served upon the garnishee therein named, whereupon Bernice Boudwin answered stating that she had in her possession some certificates of corporate stock belonging to the defendant, Charles B. Boudwin. After the filing of this answer the defendant, Charles B. Boudwin, moved to quash the writ of garnishment, for the reason that the plaintiff had no money judgment nor other demand upon which a writ of garnishment could be founded, and that the writ had been improperly issued. After argument upon this motion the trial court entered its order quashing the writ of garnishment, from which order plaintiff appeals to this court.

The question is whether or not a decree entered in a divorce action, providing for the payment of alimony in monthly installments, appearing upon the records of the court to be wholly or partially unsatisfied, and including installments which have accrued less than six years prior to the suing out of the writ, constitutes such a judgment as will support a writ of garnishment.

The following sections of the statute are pertinent to the question here presented:

By Rem. Comp. Stat. § 404, it is provided that 'a judgment is the final determination of the rights of the parties in the action.'

By section 680, Rem. Comp. Stat., it is provided that writs of garnishment may be issued by the clerks of the respective superior courts:

'2. Where the plaintiff sues for a debt and makes affidavit that such debt is just, due and unpaid, and that the garnishment applied for is not sued out to injure either the defendant or the garnishee;

'3. Where the plaintiff has a judgment wholly or partially unsatisfied in the court from which he seeks to have a writ of garnishment issued.'

Section 681 provides for the execution by plaintiff of a bond in the case mentioned in paragraph 2, supra; and section 682 provides that, before the issuance of the writ, 'the plaintiff or someone in his behalf shall make application therefor by affidavit, stating the facts authorizing the issuance of the writ. * * *'

Chapter 25, Session Laws of 1929, 'An Act relating to the execution and enforcement of judgments,' provides:

'Section 1. When any judgment of a court of record of this state requires the payment of money, or the delivery of real or personal property, the same may be enforced in those respects by execution, as provided in this act. * * *

'Sec. 2. The party in whose favor a judgment of a court of record of this state has been, or may hereafter be, rendered, or his assignee, may have an execution issued for the collection or enforcement of the same, at any time within six years from the rendition thereof. * * *

'Sec. 6. All property, real and personal, of the judgment debtor, not exempted by law, shall be liable to execution.'

Respondent relies upon the opinion of this court in the case of Liebig v. Liebig, 107 Wash. 464, 182 P. 605, 606. In this case it appeared that the plaintiff, Anne Liebig, was, during the year 1910, awarded a decree of divorce from the defendant, Arthur T. Liebig, the decree including an award to plaintiff in the sum of $40 per month by way of alimony for her support and maintenance. Seven years later the alimony was reduced to $5 per month. January 28, 1918, plaintiff filed an affidavit alleging 'that defendant was indebted to her in the sum of $2,400,' and that a person therein named was indebted to the defendant. Based upon this affidavit, a writ of garnishment was issued, to which the garnishee responded, disclosing an indebtedness to the defendant. A petition by the defendant to quash the writ of garnishment upon the ground that the same was improperly and wrongfully issued, and because there was no money judgment against defendant, was sustained and the writ quashed. On appeal the order of the superior court was affirmed. It appears from the opinion that plaintiff based her demand for a writ of garnishment upon an affidavit in which it was alleged that the defendant was indebted to her, she apparently endeavoring to bring herself within the provisions of subparagraph 2, of section 680, Rem. Comp. Stat., supra. As plaintiff did not file any bond in support of her application for a writ, as provided for by section 681, supra, it is evident that the writ was wrongfully issued and was obnoxious to a motion to quash. In the course of its opinion this court says: 'In this case it is not claimed that appellant had a judgment for a specific amount at the time the writ was applied for. It is plain from the record that appellant was claiming that respondent was indebted to her for unpaid alimony; but there was no judgment for any specific amount, and there is not now, so far as the record shows.'

It is apparent that the plaintiff in the case last cited based her right to a writ of garnishment upon her affidavit alleging an indebtedness, and not upon the fact that she had a judgment against the defendant. Upon the record before the court the case was rightly decided, but a different question is presented by the record in the case at bar.

Judgments for alimony rendered in gross amounts have been referred to by this court on several occasions as ordinary judgments for the payment of money. Philbrick v. Andrews, 8 Wash. 7, 35 P. 358; State ex rel. Ditmar v. Ditmar, 19 Wash. 324, 53 P. 350; Holcomb v. Holcomb, 49 Wash. 498, 95 P. 1091; Seattle Brewing & Malting Co. v. Talley, 59 Wash. 168, 109 P. 600; State ex rel. Surry v. Superior Court, 74 Wash. 689, 134 P. 178; and Yoder v. Yoder, 105 Wash. 491, 178 P. 474.

In the case of Harris v. Harris, 71 Wash. 307, 128 P. 673 674, after holding that the jurisdiction of the superior court, once having been invoked in a case involving the custody and...