Brieger v. Brieger, 44581
| Decision Date | 10 December 1966 |
| Docket Number | No. 44581,44581 |
| Citation | 421 P.2d 1,197 Kan. 756 |
| Parties | Helen Winona BRIEGER, Appellant, v. George Harold BRIEGER, Appellee, and E. B. Matlock, Jr., and Pauline C. Matlock, husband and wife, and R. D. Hydornand Bessie Hydorn, husband and wife, Intervenors, Appellees. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Where, in a divorce action, an award is decreed for periodical payments of child support, the award itself is not such a judgment as will constitute a lien upon the parent's real estate in the absence of a specific provision to such effect, and no lien is created for installments to fall due in the future.
2. Installments of child support ordered to be paid in a decree of divorce become final judgments on the dates they become due and unpaid and may be enforced in the same manner as other judgments.
3. Where an attested copy of a journal entry of a divorce decree directing periodic payments of child support has been filed in the office of the clerk of the district court of another county, pursuant to K.S.A. 60-2202, the decree becomes a matter of public record in the latter county imparting notice to subsequent purchasers of real estate, and where installments of child support have become due and unpaid under the award, they constitute final judgments which constitute judgment liens against the debtor's real estate concerning which a purchaser is deemed to have notice.
4. Where a judgment has become dormant within the purview of K.S.A. 60-2403 and has thereafter been revived within the two-year period specified by K.S.A. 60-2404, the lien thereof is not re-established so as to retain its priority over conveyances made or encumbrances created subsequent to the entry of the original judgment and prior to its revivor.
Van Smith, Jetmore, argued the cause and was on the brief, for appellant.
Richard L. Ashley, Chanute, argued the cause and was on the brief, for appellees, E. B. Matlock, Jr., and Pauline C. Matlock.
John N. Sherman, Jr., Chanute, was on the brief, for appellees, R. D. Hydorn and Bessie Hydorn.
Kenneth H. Foust, Iola, was on the brief for the appellee, George Harold Brieger.
This appeal is from an order enjoining the sale of real estate under an execution.
Historically, this action stems from a judgment entered by the District Court of Neosho County on September 8, 1959, granting the plaintiff, Helen Winona Brieger, a divorce from her husband, George Harold Brieger, and awarding plaintiff sixty dollars ($60) per month child support for the minor children placed in her custody. In the same decree the court divided the joint property of the Briegers, setting over certain city real estate in Chanute to Mrs. Brieger and awarding an 80-acre farm in Wilson County to Mr. Brieger.
Shortly after the divorce was granted, Mr. Brieger, who will be referred to in this opinion as the defendant or Brieger, began to default in making the payments of child support required by the court's decree. On December 22, 1961, an attested copy of the journal entry of the judgment entered in the divorce action was filed in the office of the clerk of the District Court of Wilson County, Kansas, together with a statement of costs. Thereafter, and on January 11, 1962, the defendant conveyed his Wilson County farm to E. B. Matlock, Jr., and Pauline Matlock, husband and wife, and this conveyance was recorded on January 15, 1962. Approximately three years later, on February 9, 1965, the Matlocks conveyed the farm to R. D. Hydorn and Bessie M. Hydorn, the conveyance being recorded February 10, 1965. Hereafter, we shall refer to these grantees as Matlock and Hydorn respectively.
On August 3, 1965, the District Court of Neosho County, acting on the plaintiff's motion for revivor, entered its order reviving the judgment of September 8, 1959, in accordance with the provisions of K.S.A. 60-2404. On approximately October 6, 1965, a praecipe for execution was filed in the District Court of Neosho County and an execution was issued directing that the Wilson County farm be sold and that the proceeds of sale be applied first, to costs, second, to taxes, and third, to plaintiff's judgment which then amounted to $3,342.50, plus $457.16 interest.
At this juncture, Matlock and Hydorn entered the picture by filing a motion to intervene and a petition for a temporary restraining order. Plaintiff countered by filing an answer to the intervenors' petition for restraining order and a trial thereupon ensued, at the conclusion of which the trial court permanently enjoined the execution sale of the Wilson County farm. The plaintiff, Mrs. Brieger, has appealed that judgment to this court. Both the defendant, Brieger, and the intervenors, Matlock and Hydorn, appear here as appellees.
Essentially, the questions to be determined in this appeal are whether the plaintiff has any judgment liens against the Wilson County farm upon which execution can be levied at this time and, if so, the extent and reach thereof.
The copy of the plaintiff's divorce decree filed in Wilson County some 24 days before Brieger's farm was conveyed to Matlock disclosed the award of child support at the rate of $60 per month. At that time, the statute which related to judgment liens was G.S.1949, 60-3126 (since reenacted as K.S.A. 60-2202), which, so far as pertinent here, provided:
'* * * An attested copy of the journal entry of any judgment, together with a statement of the costs taxed against the debtor in the case, may be filed in the office of the clerk of the district court of any county, and such judgment shall be a lien on the real estate of the debtor within that county from the date of filing such copy. * * *'
When the attested copy of the journal entry of the Brieger divorce was filed in Wilson County, it then became a matter of public record, and public notice, in that county. A subsequent purchaser of the defendant's farm would be deemed to have notice of whatever lien was evidenced by the recorded journal entry and would take his title to the farm subject to such lien. (Hargis v. Robinson, 63 Kan. 686, 689, 66 P. 988; Kuhn v. Bank, 74 Kan. 456, 458, 87 P. 551.)
Accordingly, the plaintiff contends that the Wilson County farm, which Brieger conveyed after the copy of the divorce decree was filed in Wilson County, and which is now owned by a subsequent grantee, is subject to a judgment lien both for support payments due and unpaid at the time of Brieger's conveyance and for payments coming due thereafter, as well.
The appellees do not deny that plaintiff filed a copy of the journal entry in Wilson County, but they maintain that no judgment lien was created thereby. This argument is based on the character of an award for installment payments of child support. It has long been held by this court that orders directing periodic payments for the support of minor children are subject to prospective change and modification. (Greenwood v. Greenwood, 85 Kan. 303, 116 P. 828; Dague v. Dague, 126 Kan. 405, 267 P. 988.) Hence, it is the appellees' contention that the award of monthly child support payments in this case lacks the finality of a money judgment and creates no lien whatsoever.
We believe the general rule to be that a judgment which directs the periodic payment either of support or of alimony and which fails to provide that the judgment shall be a lien on specific property does not, of itself, constitute any lien on the real estate owned by the father or husband. A discussion of this rule is found in 59 A.L.R.2d Anno: Alimony or Support Decree-Lien, § 3, pp. 660-663, where it is said:
* * *' (p. 660.)
In Roach v. Roach, 164 Ohio St. 587, 132 N.E.2d 742, 59 O.Op. 1, 59 A.L.R.2d 685, the Ohio court said:
'* * * A judgment for periodic installments for an indefinite time can not create a lien on real property, in the absence of a provision in the judgment itself for a lien. (Citing cases.) (p. 592, 132 N.E.2d p. 745.)
The rule was applied by the California Supreme Court in Yager v. Yager, 7 Cal.2d 213, 60 P.2d 422, 106 A.L.R. 664, where it was said:
See, also, Moniz v. Moniz, 142 Cal.App.2d 641, 299 P.2d 329.
This court has approved the foregoing rule so far as it may apply to payments required to be made in the future. In Trunkey v. Johnson, 156 Kan. 804, 137 P.2d 186, where a resident of the state of Washington attempted to attach Kansas real estate for installments of child support coming due after the land had been conveyed, we said:
'In this state, and it is not shown to be otherwise in Washington, a decree of a court in a divorce case giving the custody of minor children of the parties to the wife and requiring the husband to pay a definite sum at stated intervals into court for the support of the children, does not make the sums to be paid a lien upon any property of the husband: * * *' (p. 807, 137 P.2d p. 188.) Emphasis suppled.)
The Trunkey case was quoted at length and followed in Wilcox v. Wilcox, 172 Kan. 262, 240 P.2d 144.
We are cited to no authority upholding plaintiff's contention that a judgment which provides for periodic support payments will create a lien for installments not yet due. Indeed, the authorities are quite to the contrary. This being so, we think it clear that no judgment lien attached to the ...
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