Gonzalez v. Gonzalez

• Decision Date: 02 July 1985
• Docket Number: No. 7838,7838
• Citation: 103 N.M. 157,1985 NMCA 71,703 P.2d 934
• Parties: Esther O. GONZALEZ, a single woman, and Neil E. Weinbrenner and Eddie F. Weinbrenner, his wife, Plaintiffs-Appellees, v. Thomas J. GONZALEZ, Defendant-Appellant. Esther O. GONZALEZ, Plaintiff-Appellee, v. Thomas GONZALEZ, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 934

703 P.2d 934

103 N.M. 157

Esther O. GONZALEZ, a single woman, and Neil E. Weinbrenner and Eddie F. Weinbrenner, his wife, Plaintiffs-Appellees, v. Thomas J. GONZALEZ, Defendant-Appellant.

Esther O. GONZALEZ, Plaintiff-Appellee, v. Thomas GONZALEZ, Defendant-Appellant.

No. 7838.

Court of Appeals of New Mexico.

July 2, 1985.

[103 NM 159] Larry Ramirez, Weinbrenner, Richards, Paulowsky & Sandenaw, P.A., Las Cruces, for plaintiffs-appellees.

Frederick H. Sherman, Sherman & Sherman, P.C., Deming, Sarah M. Singleton, Singleton Law Offices, Santa Fe, for defendant-appellant.

OPINION

MINZNER, Judge.

Defendant Thomas J. Gonzalez appeals from the trial court's order, entered in a consolidated proceeding, that found a 1969 judicial sale valid and quieted plaintiffs' title on the basis of that sale. At the sale, plaintiff Esther O. Gonzalez, defendant's former wife, had acquired his fractional interest in real property, and she subsequently transferred part of that interest to plaintiffs Neil and Eddie Weinbrenner. We reverse and remand for further proceedings.

Defendant contends that the arrearages should have been reduced to a lump sum judgment before execution issued and that in the absence of such a judgment the sale was void. See Jackson v. Sears, Roebuck & Co., 83 Ariz. 20, 315 P.2d 871 (1957). Defendant also contends that the sale was void because he received insufficient notice to satisfy constitutional due process requirements. See Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946). We hold that the existence of genuine issues of material fact precluded summary judgment in favor of plaintiffs. We also hold that prior to ruling on defendant's motion to vacate the sale, the trial court should have held an evidentiary hearing with respect to his due process claim.

FACTS

The land in question originally belonged to Josefa Gonzalez, defendant's mother. After she died, it was held in co-tenancy by her children. One of the children, by agreement, collected rents, paid expenses, and distributed net profits as directed by his co-tenants.

Mr. and Mrs. Gonzalez had been divorced in 1958, prior to his mother's death. An amended final decree had been entered in 1959; it ordered defendant to pay child support of $100 per month. Defendant was ordered to make the payments to the court clerk. The record indicates that defendant did not make regular child support payments; at the hearing before the trial court, Mrs. Gonzalez introduced evidence that defendant had made payments of less than $1200 by 1969.

In June 1969, alleging that defendant was indebted for $10,650.25 in past due child support, Mrs. Gonzalez obtained a writ of garnishment and received $417.49 due defendant from his mother's estate. Later the same year, Mrs. Gonzalez obtained an alias writ of execution against his one-eighth interest in the land. A notice of sale was published for four consecutive weeks in the Las Cruces Sun-News, and the notice of levy was recorded in the two counties in which the land lies. On December 9, 1969, Mrs. Gonzalez purchased defendant's interest for $7700; a $3252.76 deficiency remained after costs. Mrs. Gonzalez subsequently conveyed a portion of her interest to Mr. and Mrs. Weinbrenner.

On March 15, 1982, defendant moved to vacate or set aside the sale. He claimed that the execution was not valid, because it was not preceded by judgment for the stated arrearages, and also that the court lacked jurisdiction to order a sale because he was not given adequate notice. He indicated that he had made payments that had not been credited, including the sum garnished.

Plaintiffs filed a quiet title action against defendant on March 16, 1982 concerning the same land. Defendant answered and moved for summary judgment, again asserting that the judicial sale was void. Plaintiffs moved for summary judgment.

The trial court consolidated both actions with an earlier suit for partition brought by plaintiffs against the heirs of Josefa Gonzalez, in which plaintiffs moved the court to enforce a purported settlement agreement. Defendant also moved for summary judgment in that action, on the basis that the sale was void.

At the hearing held after consolidation, plaintiffs introduced evidence by affidavit that defendant had actual knowledge after December 1969 that plaintiffs claimed title to the land, and that letters from the Dona Ana County Sheriff and Mr. Weinbrenner, then serving as Mrs. Gonzalez' lawyer, gave him notice of execution and the pending sale. Defendant stated by affidavit, however, that the last pleading he received in the divorce action was the amended final decree and that he received no pleadings relating to and had no knowledge of the execution and sale.

On May 3, 1984, the trial court granted plaintiffs' motion for summary judgment. On the same day, by the same order, the trial court also denied defendant's motion to vacate the judicial sale and his various motions for summary judgment. In addition, the court found the settlement agreement could not be enforced.

Defendant appealed the grant of summary judgment and the denial of his motion to vacate the sale. Although he applied for an interlocutory appeal with respect to the suit for partition, this court denied the application.

VALIDITY OF AN EXECUTION PRIOR TO JUDGMENT FOR ARREARAGES BASED ON A DECREE PROVIDING PERIODIC CHILD SUPPORT PAYMENTS

There is a conflict among those jurisdictions that have considered defendant's first contention: whether arrearages in child support payments, previously decreed, must be reduced to judgment before a valid execution may issue. Cullinan v. Cullinan, 226 N.W.2d 33 (Iowa 1975). In some jurisdictions, each installment is in itself a judgment as it falls due, unless the trial court provides otherwise in fixing the periodic support payments. See id. See also Di Corpo v. Di Corpo, 33 Cal.2d 195, 200 P.2d 529 (1948); Hedgecorth v. Hedgecorth, 463 S.W.2d 596 (Mo.App.1971). In other jurisdictions, an order for periodic support payments must be reduced to a lump sum judgment before execution may issue. See Roach v. Roach, 164 Ohio St. 587, 132 N.E.2d 742 (1956). Such a rule is consistent with the more general principle, followed in some jurisdictions, that before execution can issue on a judgment, the judgment must be for money, and the specific sum of money due and the identity of the person to whom it is payable must be fixed. See McKay v. Coca-Cola Bottling Co. of Santa Barbara, 110 Cal.App.2d 672, 243 P.2d 35 (1952). A jurisdiction that follows the more general principle, however, may make an exception for a decree that orders periodic support. In California, for example, a creditor spouse may obtain a writ of execution for accrued installments upon an ex parte showing of an unpaid sum. See In re Marriage of Wyshak, 70 Cal.App.3d 384, 138 Cal.Rptr. 811 (1977); In re Marriage of Crookshanks, 41 Cal.App.3d 475, 116 Cal.Rptr. 10 (1974), appeal dismissed, 420 U.S. 985, 98 S.Ct. 1418, 43 L.Ed.2d 667 (1975). This result appears to be the majority rule. See generally 27B C.J.S. Divorce Sec. 321(8) (1959).

In the absence of relevant provisions in the decree, the answer to the contention depends on legislative intent. Cullinan v. Cullinan; Roach v. Roach. Cf. Jackson v. Sears, Roebuck & Co. (statute and rule permitted execution to issue only after formal entry of the judgment on the docket). Our statutes and cases indicate that a creditor spouse may obtain a writ of execution based on a decree for child support without first proceeding to reduce arrearages to judgment.

The legislature has provided for enforcement of periodic support payments by recognizing a lien that attaches upon filing the decree. The relevant specific statutory authority then and now provides:

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

NMSA 1978, Sec. 40-4-15 (Repl.Pamp.1983) (emphasis added). The legislature has provided for immediate enforcement of the lien. "The liens created by this act [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." NMSA 1978, Sec. 40-4-16 (Repl.Pamp.1983) (emphasis added). Such provisions are consistent with the majority rule.

The original decree awarding child support is considered a final judgment, even though the court retains continuing jurisdiction. Smith v. Smith, 98 N.M. 468, 649 P.2d 1381 (1982); cf. NMSA 1978, Sec. 39-1-1. In addition, each installment of child support due is a final judgment for statute of limitations purposes. Britton v. Britton, 100 N.M. 424, 671 P.2d 1135 (1983).

The record does not contain evidence that Mrs. Gonzalez recorded a copy of the amended final decree with the county clerks of the counties where the land is located. Thus, we cannot rely on Section 40-4-15 in analyzing her right to obtain a writ of execution. Failure to prove she acquired a lien, however, is not fatal. NMSA 1978, Section 40-4-19 (Repl.Pamp.1983) provides, in part, that "[n]othing in Sections 40-4-12 through 40-4-19 NMSA 1978 shall prevent a person or persons entitled to benefits of any decree for alimony or support from enforcing the decree by attachment, garnishment, execution or contempt proceedings as is now provided by statute."

Other New Mexico statutes provided for execution upon a decree or order, as well as a judgment. See NMSA 1978, Secs. 39-4-1 to -9.

The party in whose favor any judgment, order or decree in any court may be returned, shall have execution therefor in conformity to the order, judgment or decree. Said...