D'Avignon v. Graham

• Decision Date: 07 November 1991
• Docket Number: No. 12062,12062
• Citation: 823 P.2d 929,113 N.M. 129,1991 NMCA 125
• Parties: Shirley D'AVIGNON, Plaintiff-Appellant, v. James O. GRAHAM, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 929

823 P.2d 929

113 N.M. 129

Shirley D'AVIGNON, Plaintiff-Appellant, v. James O. GRAHAM, Defendant-Appellee.

No. 12062.

Court of Appeals of New Mexico.

Nov. 7, 1991.

[113 NM 129] Winston Roberts-Hohl, Santa Fe, Marvin Baggett, Farmington, for plaintiff-appellant.

Randall S. Roberts, Roberts & Jolley, Farmington, for defendant-appellee.

OPINION

ALARID, Chief Judge.

Plaintiff (mother) appeals a trial court judgment that her lien on defendant's (father) real and personal property arising out of child support arrearages pursuant to NMSA 1978, Section 40-4-15 (Repl.Pamp.1989) cannot be foreclosed because father timely interposed an exemption defense pursuant to NMSA 1978, Sections 42-10-1 or -2 (Orig.Pamp.). We reverse.

FACTS

This case was tried by non-jury trial. The parties have agreed to the following stipulated facts on appeal: Defendant is the unemployed father of a minor child. Following a divorce between father and the mother of the child, the parties entered into a child support agreement. Pursuant to this agreement, father is indebted to mother for child support arrearages in the amount of $2,625.

Father owns a pickup truck with a fair market value of less than $4,000 and an attached camper shell valued at less than $300. Father owns no other personal property and does not own a homestead. Pursuant to Section 40-4-15, mother obtained a perfected statutory lien on the real and personal property of father for the amount of the child support arrearages. Mother attempted to foreclose the lien on father's pickup truck and camper. Father timely interposed a statutory exemption defense. The trial court, relying on Sections 42-10-1 or -2 (exemptions), found the lien valid, but unenforceable against the truck and camper shell as a matter of law.

DISCUSSION

Today there exists in our statutory child support enforcement scheme an ambiguity which apparently makes possible the interposition of an exemption defense between a parent and a minor child's claim for child support. The sole question on appeal is whether a statutory lien based on child support arrearages may defeat a statutory exemption defense. For the reasons set forth below, we conclude that the statutory exemption defenses set forth at NMSA 1978, Chapter 42, article 10, are unavailable to a parent as against a lien for child support obligations under Section 40-4-15.

I. Issues Properly Preserved for Appeal

Father has taken the position that the issue of whether an exemption defense may defeat a lien based on child support arrearages was not properly preserved for appeal. Father complains that mother failed to submit, and the trial court failed to enter, findings of fact which support the required predicate that father was not supporting his child.

Whether or not a parent is "supporting another person" within the contours of the exemption statute is a question of fact. See Ruybalid v. Segura, 107 N.M. 660, 666, 763 P.2d 369, 375 (Ct.App.1988). In Ruybalid, this court indicated that the question turns on the extent of financial contribution made by the parent. Id. at 666, 763 P.2d at 375. In this case, the trial court's findings establish father owes mother $2,625 in child support arrearages. The record also establishes that father admitted in his answer to mother's complaint that he was so indebted. The record contains no evidence that father is supporting his minor child. We conclude the trial court findings are sufficient and establish that the issue was properly preserved below.

II. The Relevant Statutes

The trial court held that mother had a valid lien pursuant to Section 40-4-15. Section 40-4-15 provides that a money allowance to children constitutes a lien on the real and personal property of the party so obligated.

In case a sum of money is allowed to the children by the decree for the support, education or maintenance of the children, the decree shall become a lien on the real and personal property of the party who must furnish the child support from the date of filing for record a certified copy of the decree in the office of the county clerk of each county where any of the property may be situated. [Emphasis added.]

Id.; see also Gonzalez v. Gonzalez, 103 N.M. 157, 161, 703 P.2d 934, 938 (Ct.App.1985) (child support payments become vested final judgments at time due and not paid in full). However, because the foreclosure of judgment liens by judgment creditors is apparently subject to article 10 (Secs. 42-10-1 to -11) statutory exemptions, and nothing in article 10 expressly excepts liens based on child support obligations from being defeated by an exemption defense, the trial court held the lien unenforceable. See NMSA 1978, Sec. 42-10-11 (Orig.Pamp.) (statutory exceptions to homestead exemption defense).

The trial court relied in part on NMSA 1978, Section 40-4-16 (Repl.Pamp.1989), which provides:

The liens created by this act [Secs. 40-4-12 to 40-4-19 NMSA 1978] may be satisfied by execution or may be foreclosed under the same procedure as is now allowed for the foreclosure of judgment liens. [Emphasis added.]

At the trial, the trial court sought but did not receive adequate authority to derive the true legislative intent in this area of law. Where a defendant debtor has no wages to garnish, to construe the above provisions as father urges produces the draconian result of statutory child support obligations that are unenforceable. Moreover, it is inconsistent with the strong public policy requiring that our child support statutes be construed to ensure the welfare of minor children. See Spingola v. Spingola, 91 N.M. 737, 743, 580 P.2d 958, 964 (1978) (welfare of child is primary concern on review of child support awards and support order modifications). We do not believe that the legislature intended both to create statutory liens and render them unenforceable as a matter of law. We conclude that father's reading of Section 40-4-16 is incorrect. We address below the proper construction of the statutory provisions in issue.

III. Statutory Construction Concerns

Father argues that the rules of statutory construction preclude a holding that the article 10 exemptions contain an implied exception for liens based on child support obligations. Father relies primarily on the "plain meaning" rule. See General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 703 P.2d 169 (1985) (plain language of statute is primary means of ascertaining legislative intent). Specifically, father argues that the terms used in the exemption statutes "clearly indicate that public policy does not favor payment of child support which overrides the public policy favoring minimum exemptions from execution or judgment liens." We disagree. The enactment of the article 10 exemptions by the New Mexico legislature does not positively require that the exemption be effective against minor children seeking to foreclose liens based on child support arrearages.

Father overlooks that the cardinal rule of statutory construction is to determine legislative intent. See Quintana v. New Mexico Dep't of Corrections, 100 N.M. 224, 668 P.2d 1101 (1983) (purpose of rules of statutory construction is to determine legislative intent). True, legislative intent is first sought by reference to the plain meaning found in the language used by the legislature. However, both this court and the New Mexico Supreme Court have rejected formalistic and mechanistic interpretation of statutory language. See Martinez v. Research Park, Inc., 75 N.M. 672, 410 P.2d 200 (1965) (intention of legislature prevails over strict adherence to letter of statute), overruled on other grounds, Sundance Mechanical & Utility Corp. v. Atlas, 109 N.M. 683, 789 P.2d 1250 (1990); Lakeview Investments, Inc. v. Alamogordo Lake Village, Inc., 86 N.M. 151, 520 P.2d 1096 (1974); Security Escrow Corp. v. State Taxation & Revenue Dep't, 107 N.M. 540, 760 P.2d 1306 (Ct.App.1988) (central concern of reviewing court is to determine legislative intent). Judge Learned Hand, in his concurring opinion in Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir.1944), has said:

There is no surer way to misread any document than to read it literally; in every interpretation we must pass between Scylla and Charybdis; and I certainly do not wish to add to the barrels of ink that have been spent in logging the route. As nearly as we can, we must put ourselves in the place of those who uttered the words, and try to divine how they would have dealt with the unforeseen situation; and, although their words are by far the most decisive evidence of what they would have done, they are by no means final.

Our courts have said of the exemption statute in issue today:

In a comprehensive statute such as this, harmony and consistency, while greatly to be desired, are not always found. A momentary lapse from them may easily be given too much weight in interpretation.

McFadden v. Murray, 32 N.M. 361, 367, 257 P. 999, 1002 (1927); see also 35 C.J.S. Exemptions Sec. 4 (1960) ("the intention of the lawmaker must prevail over the literal sense of the terms, and the spirit and intention of the statute must prevail over its strict letter").

We review the history and application of our exemption statute to ascertain the proper construction of the language in issue.

IV. Exemption Laws: History, Application and Proper Construction

Exemption laws rest entirely on constitutional or statutory grounds. See 31 Am.Jur.2d Exemptions Sec. 1 (1989); see also 35 C.J.S. Exemptions Sec. 1 (1960); New Mexico Nat'l Bank v. Brooks, 9 N.M. 113, 49 P. 947 (1897) (exemption is personal right and is purely statutory). Exemptions were unknown at common law, and are in derogation thereof. See 31 Am.Jur.2d Exemptions Sec. 2 n. 13; 35 C.J.S. Exemptions Sec. 1 nn. 10 & 11; Exemptions are privileges granted by law on public policy grounds. See 31 Am.Jur.2d Exemptions Sec. 1; 35 C.J.S. Exemptions Sec. 3. "The purpose of a homestead exemption, and of exemptions in general,...