Cyr v. Cyr

• Decision Date: 12 July 1991
• Docket Number: No. 65400,65400
• Citation: 815 P.2d 97,249 Kan. 94
• Parties: Goldie Anabell CYR, Appellee/Cross-Appellant, v. Darrell Dean CYR, Appellant/Cross-Appellee.
• Court: Kansas Supreme Court

Page 97

815 P.2d 97

249 Kan. 94

Goldie Anabell CYR, Appellee/Cross-Appellant, v. Darrell Dean CYR, Appellant/Cross-Appellee.

No. 65400.

Supreme Court of Kansas.

July 12, 1991.

Syllabus by the Court

1. A dormant judgment may be revived within two years of its dormancy if the judgment creditor files a motion for revivor and files a request for the immediate issuance of an execution thereon. Once a judgment grows dormant, however, and is not revived pursuant to K.S.A.1990 Supp. 60-2404, it becomes absolutely extinguished and unenforceable.

2. Interpretation of a statute is a question of law, and it is a function of this court to interpret a statute to give it the effect intended by the legislature. The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs. In determining legislative intent, we are not limited to consideration of the language used in the statute, but may look at the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.

3. Pursuant to K.S.A.1990 Supp. 60-2403(a), a judgment becomes dormant after five years if a renewal affidavit is not filed or if an execution, "including any garnishment proceeding, income withholding proceeding or proceeding in aid of execution" is not issued.

4. The purpose of the proceeding in aid of execution is remedial in that it assists the judgment creditor in obtaining satisfaction of a prior judgment.

5. Civil contempt is the failure to do something ordered by the court for the benefit or advantage of another party to the proceeding. A proceeding in civil contempt is remedial in nature, designed to advance the private right of a litigant won by court order. Any penalty inflicted for contempt, however, is intended to be coercive, and relief can be achieved only by compliance with the order. The power to punish for contempt of court does not arise from legislative action, but is inherent in the court itself. The procedure for holding a party in indirect contempt, however, is set forth by statute and must be strictly construed against the movant.

6. Court orders for child support are enforceable by proceedings in indirect contempt.

7. Execution of a judgment and the revivor thereof are creatures of statute. A citation for contempt of court is not one of those proceedings enumerated in K.S.A.1990 Supp. 60-2403 for keeping a judgment alive; therefore, it cannot have such effect.

Charles F. Harris, of Kaplan, McMillan and Harris, Wichita, argued the cause and was on the briefs, for appellant.

Megan L. Campbell, Wichita, argued the cause, and Gary H. Jarchow, Court Trustee, Wichita, was on the brief, for appellee.

HERD, Justice:

This is a post-divorce action by Goldie Cyr to enforce child support and alimony judgments. The appellant, Darrell Cyr, contends the judgments are void due to the passage of time.

The facts are not in dispute. Goldie and Darrell Cyr were divorced in 1964. Goldie was granted custody of the children and Darrell was ordered to pay $35 a week, commencing April 13, 1964, for child support, and $2,500 in alimony, at $25 a month, beginning April 27, 1964. The court order to pay alimony expired in July 1972.

The last execution to collect past due child support was issued on July 22, 1974, and there have been no other executions, formal hearings in aid of execution, or wage withholding proceedings.

On March 6, 1979, and January 24, 1980, Goldie filed accusations and affidavits of contempt against Darrell for failure to pay support. A hearing was held and on September 22, 1980, the district court determined Darrell was $2,550 in arrears on the alimony judgment and $14,653.74 in arrears on the child support payments and entered judgment thereon from which no appeal was taken. Darrell was ordered to make $25 weekly payments on the $17,203.74 arrearage.

On May 2, 1981, the Cyrs' youngest child reached majority. Goldie Cyr filed a third motion for contempt against Darrell for failure to pay support on July 1, 1981. Thereafter, on November 20, 1981, Goldie's motion for contempt was withdrawn upon Darrell's agreement to pay $100 a month on the arrearage to be determined by the court order. On November 3, 1982, the parties announced a settlement to the court in which Darrell acknowledged an arrearage of $16,375.74 together with $6,667.59 in accrued interest. The court ordered that those sums constituted a judgment against the defendant. No appeal was taken from this order. On rehearing, on November 18, 1982, the court vacated the November 3, 1982, order and reaffirmed the judgment of September 22, 1980.

On March 1, 1983, Goldie filed an accusation and affidavit in contempt against Darrell for failure to pay $100 a month on the arrearage as ordered November 20, 1981. Goldie withdrew the motion for contempt upon Darrell's agreement to pay $100 a month until the November 20, 1981, order was brought up to date. Darrell failed to make the payments, however, and was found guilty of indirect contempt for nonpayment of support on April 13, 1987. He was sentenced to 30 days in jail but placed on probation upon agreement to pay arrearage of $13,015.46 plus interest. Goldie was granted judgment against Darrell in the amount of $13,015.46, on April 13, 1987. No appeal was taken from this order.

Darrell failed to make the $100 payments and Goldie subsequently filed a motion to revoke probation. A hearing officer found the April 13, 1987, order to pay $100 a month was res judicata on the issues of child support and alimony, and, in addition, constituted a new judgment. Upon appeal of the hearing officer's report, the district court determined there could be no new judgment after May 2, 1981, for past due child support and no new judgment for past due alimony after July 1972, and, therefore, the arrearage amount determined by the court on April 13, 1987, did not constitute a new judgment. The district court further ruled that Goldie's accusations in contempt did not constitute executions pursuant to K.S.A. 60-2401 or garnishment or income withholding proceedings pursuant to K.S.A.1990 Supp. 60-2403 but were proceedings in aid of execution pursuant to 60-2403, thereby keeping alive the judgments for past due support. Goldie and Darrell each appealed the district court ruling to the Court of Appeals, which in an unpublished opinion filed December 28, 1990, affirmed the trial court finding that the contempt actions kept the judgments for past due support alive under 60-2403 but disagreed with the trial court's finding that the April 13, 1987, calculation is not a new judgment. 803 P.2d 211. Darrell sought and was granted review by this court.

The first issue we address is whether an accusation in contempt for failure to comply with an order to pay child support and alimony is a proceeding in aid of execution pursuant to K.S.A.1990 Supp. 60-2403.

K.S.A.1990 Supp. 60-2403(a) provides in part:

"If a renewal affidavit is not filed or if execution, including any garnishment proceeding, income withholding proceeding or proceeding in aid of execution, is not issued, within five years from the date of the entry of any judgment, ... the judgment ... shall become dormant."

A dormant judgment may be revived within two years of its dormancy if the judgment creditor files a motion for revivor and files a request for the immediate issuance of an execution thereon. K.S.A.1990 Supp. 60-2404. Once a judgment grows dormant, however, and is not revived pursuant to K.S.A.1990 Supp. 60-2404, it becomes absolutely extinguished and unenforceable. Long v. Brooks, 6 Kan.App.2d 963, 966, 636 P.2d 242 (1981).

Darrell Cyr alleges Goldie Cyr's contempt accusations did not keep alive the support judgments because the contempt proceedings were not proceedings in aid of execution. He contends the purpose of a contempt proceeding is to force compliance with a court order, whereas the purpose of a proceeding in aid of execution is to supply information to aid in collecting a money judgment. Thus, he asserts the alimony judgment became dormant in July 1984 and was extinguished two years later, and the child support judgments became void in May 1988, seven years after the youngest child reached majority.

Goldie Cyr contends the September 1980 arrearage judgment did not become dormant because the purpose of the numerous contempt proceedings was to give effect to the previous and past due support orders of the district court. Therefore, Goldie asserts, the contempt proceedings constituted proceedings in aid of execution within the meaning of K.S.A.1990 Supp. 60-2403 and K.S.A.1990 Supp. 60-2419.

Interpretation of a statute is a question of law and it is a function of this court to interpret a statute to give it the effect intended by the legislature. NCAA v. Kansas Dept. of Revenue, 245 Kan. 553, 557, 781 P.2d 726 (1989). The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs. Watkins v. Hartsock, 245 Kan. 756, 759, 783 P.2d 1293 (1989). In determining legislative intent, we are not limited to consideration of the language used in the statute, but may look at the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. In re Petition of City of Moran, 238 Kan. 513, 520, 713 P.2d 451 (1986); Jackson v. City of Kansas City, 235 Kan. 278, 319, 680 P.2d 877 (1984).

K.S.A.1990 Supp. 60-2403(a) states that a judgment becomes dormant after five years if a renewal affidavit is not filed or if an execution, "including any garnishment proceeding, income withholding proceeding or proceeding in aid of execution," is not issued. Fleming v. Etherington, 227 Kan. 795, 798, 610 P.2d 592 (19...