Dunham v. Tabb

• Decision Date: 15 December 1980
• Docket Number: No. 8980-3-I,8980-3-I
• Citation: 27 Wn.App. 862,621 P.2d 179
• Parties: James T. DUNHAM and Gayle K. Dunham, his wife, Respondents, v. Gita M. TABB, an unmarried woman, Appellant, and Lawrence G. Waldt, Sheriff-Director, Department of Public Safety, King County, Washington, Defendant.
• Court: Washington Court of Appeals

Page 862

27 Wn.App. 862

621 P.2d 179

James T. DUNHAM and Gayle K. Dunham, his wife, Respondents, v. Gita M. TABB, an unmarried woman, Appellant and Lawrence G. Waldt, Sheriff-Director, Department of Public Safety, King County, Washington, Defendant.

No. 8980-3-I.

Court of Appeals of Washington.

Dec. 15, 1980.

Hennings, Maltman, Weber & Reed, Douglas North, Seattle, for appellant.

Bruce H. Hurst, Seattle, for respondents.

CALLOW, Chief Judge.

The defendant, seeking to secure unpaid child support from real property of the father, appeals from a summary judgment quieting title to the property in the plaintiff-purchasers. We are asked to decide (1) whether the defendant's judgments against Howard Cook for unpaid child support constituted a lien on Cook's real property when Cook conveyed the property to the plaintiffs; (2) whether the defendant's claim against Howard Cook entitled her to an equitable lien on the property; and (3) whether Cook's sale of his property to the plaintiffs constituted a fraudulent conveyance.

On October 20, 1978, Gita M. Tabb obtained a judgment against Howard Cook in a paternity action. Thereafter, on November 13, 1978, a writ of execution for the amount of unpaid pregnancy costs, attorney's fees, and the first month's child support was issued. Pursuant to this writ, the sheriff levied execution on the real property at issue here, which was then owned by Howard Cook, and it was sold at sheriff's sale to a third party on December 22, 1978, satisfying the judgment. During the year period of redemption following the sheriff's execution sale, no sheriff's deed was issued and title remained in Howard Cook.

Howard Cook had departed from the United States and returned to this country in the spring of 1979. On September 5, 1979, a "motion and affidavit for a reduction of accrued child support to judgment" was presented on behalf of Ms. Tabb to a court commissioner, but the court commissioner refused to sign the proposed judgment. On September 11, 1979, an affidavit of delinquent child support was filed in the case of Tabb v. Cook (a sealed Superior Court file), and on the same day a lis pendens was filed against the subject property with the county auditor. This lis pendens did not conform to the requirements of RCW 4.28.320.

Howard Cook redeemed the subject property on September 18, 1979, and on September 20, 1979, he conveyed the property by warranty deed to James and Gayle Dunham, plaintiffs herein.

On September 28, 1979, the court issued a writ of execution for unpaid installments of child support due Ms. Tabb from Howard Cook. Levy of execution was made against the subject property on October 11, 1979, and the sheriff's sale was set for November 16, 1979. The Dunhams commenced this action to quiet title to prevent the sheriff's sale, and the trial court entered summary judgment thereafter in their favor.

First, the defendant argues that her judgments against Howard Cook for unpaid child support constituted a lien on Cook's real property when he conveyed the property to the plaintiffs.

Under RCW 4.56.190-.200, a superior court judgment becomes a lien upon all the judgment debtor's real property located in that county. Accrued, unpaid alimony and child support payments, however, have received different treatment. Each unpaid installment becomes a separate judgment, bearing interest from the date due. Roberts v. Roberts, 69 Wash.2d 863, 866, 420 P.2d 864 (1966). Such judgments will support a writ of garnishment, Boudwin v. Boudwin, 159 Wash. 262, 268, 292 P. 1017 (1930), execution, Starkey v. Starkey, 40 Wash.2d 307, 314, 242 P.2d 1048 (1952), or attachment. These judgments, however, do not become liens on the debtor's real property unless the divorce or other decree designates a lien upon particular property. If the decree is silent, no lien is created until levy of execution. Stafford v. Stafford, 18 Wash.2d 775, 785, 140 P.2d 545 (1943).

Swanson v. Graham, 27 Wash.2d 590, 179 P.2d 288 (1947), held that a divorce decree providing for alimony and child support installments does not create a lien on the debtor's present and after-acquired real property. In discussing the effect of accrued, unpaid installments, the court stated:

(D)o such judgments, as they accrue, become a lien on the property of the defendant? What is it, under the statute, which creates the lien? It is the entry of the judgment, and the extent of the lien is limited to the amount of such judgment, plus interest and costs. At the time a judgment providing for future payments of alimony installments is entered, there is no debt due. There is nothing to secure. There is nothing for which a lien could come into being. (The situation would be different, of course, if the judgment provided for alimony in a lump sum.) As the installments accrue and are unpaid, they become judgments. But such judgments do not become statutory liens.

In order to create a statutory lien, there must be a judgment for a specific amount, and it must be entered. Immediately upon its being entered, in order to secure its collection, the defendant's real property is encumbered. It is then impressed with the lien. In some jurisdictions, an award of alimony is declared by statute to be a lien on the real estate of the husband in the same manner as any other money judgment. Under such statutes, a decree for periodic payments for support, or as alimony, is generally held to become a lien on the real estate of the husband.... However, we have no such statute in this state.

Swanson v. Graham, supra at 597-98, 179 P.2d 288 (citation omitted). The court quoted Mansfield v. Hill, 56 Or. 400, 107 P. 471 (1910):

The very idea of a lien upon property involves certainty as to the amount, so that persons dealing with defendant, as well as defendant himself, may know how much is involved; otherwise he would be precluded from dealing with his property at all, since it would be impossible for him to pay the lien."

Swanson v. Graham, supra at 598, 179 P.2d 288.

We are not persuaded that we should depart from the rule of Swanson v. Graham, supra. The accrued, unpaid child support judgments due the defendant at no time constituted a lien on Cook's real property. Had Cook not conveyed the property to the plaintiffs in September 1979, no lien would have encumbered the property until October 11, 1979, when levy of execution was made. We hold that the plaintiffs acquired title to Cook's real property before the defendant took the action necessary to impose a lien to satisfy her judgments.

Second, the defendant argues that she is entitled to an equitable lien on the plaintiffs' real property because she recorded a lis pendens 9 days before the plaintiffs recorded their deed.

RCW 4.28.320 authorizes the filing of a lis pendens "(i)n an action affecting the title to real property." Tabb v. Cook concerned Cook's liability for child support; his real property was not the subject of the action nor was his title to the property affected by the child support order. The purpose of a lis pendens is to give "notice of the pendency of the action," RCW 4.28.320. "The statute relates to the filing of a notice of the pendency of an action, not to a judgment, and it has no relation to a title acquired after judgment." London & San Francisco Bank, Ltd. v. Dexter Horton & Co., 126 F. 593, 599 (9th Cir. 1903). Final judgment in Tabb v. Cook was entered in October 1978; in September 1979, no action was pending between the parties to that suit. See Washington Dredging & Improvement Co. v. Kinnear, 24 Wash. 405, 406, ...