Holley v. Crow

• Decision Date: 08 February 1978
• Citation: 355 So.2d 1123
• Parties: Kenneth HOLLEY v. Billy Joe CROW. Civ. 1294.
• Court: Alabama Court of Civil Appeals

Page 1123

355 So.2d 1123

Kenneth HOLLEY v. Billy Joe CROW.

Civ. 1294.

Court of Civil Appeals of Alabama.

Feb. 8, 1978.

W. H. Rogers, Moulton, for appellant.

J. G. Speake, of Speake, Speake & Reich, Moulton, for appellee.

BRADLEY, Judge.

The appellee (plaintiff below), Billy Joe Crow, recovered a judgment of $1,000 against appellant (defendant below), Kenneth Holley, in the Circuit Court of Morgan County. On April 22, 1977 plaintiff filed a writ of garnishment against defendant and the latter's employer, Procon, Inc., as garnishee. Procon, who is not a party to this appeal, informed plaintiff that it would withhold defendant's wages. Thereupon, defendant filed a declaration of exemption from garnishment based on the $1,000 personal property exemption found in Title 6, chapter 10, section 6, Code of Alabama 1975 (formerly Title 7, section 629, Code of Alabama 1940) and the seventy-five percent wage exemption provided for in Title 6, chapter 10, section 7 (formerly Title 7, section 630). Defendant subsequently amended his declaration of exemption to include the $1,000 personal property exemption granted under the authority of Article X, Section 204, Constitution of Alabama 1901.

After receiving notice that defendant had claimed his statutory and constitutional exemptions from garnishment, plaintiff filed a motion to strike defendant's claim for a personal property exemption on the following grounds: (1) that the claimed exemption exceeded the $1,000 authorized for personal property exemptions; (2) that defendant had fraudulently disposed of his real and personal property for the purpose of defeating the garnishment; and (3) that defendant's monthly income of $2,000 was in excess of the $1,000 personal property exemption. Plaintiff also sought a court order requiring that defendant submit an inventory listing defendant's personal property.

The trial court subsequently ordered defendant to file an inventory and the defendant complied with this order by filing an inventory in which he stated that he earned approximately $400-$500 a week from his employment with Procon. In addition, he stated that he held no interest in any real property and that his only personal property included his clothing and an interest in a 1976 Ford pickup truck. However, defendant valued his monetary interest in the truck at zero dollars. This latter assertion was based on the defendant's claim that he had merely taken title to the truck in order to aid his brother-in-law who was having financial difficulty in meeting the monthly payments on the vehicle.

On July 12, 1977 the trial court held a hearing on the plaintiff's motion to strike the personal property exemption claimed by defendant. The evidence presented at this hearing demonstrates the following facts. In 1971-1972 defendant and his wife had executed a property settlement in anticipation of the dissolution of their marriage. The couple eventually decided not to obtain a divorce and the property settlement did not take place. However, four years later defendant and his wife did obtain a divorce. The parties' divorce occurred prior to the date on which plaintiff had recovered his judgment against defendant. The trial court adopted in its divorce decree the property settlement which defendant and his wife had agreed to in 1971-1972. Under the terms of this settlement, defendant's wife received all of the couple's real and personal property. Pursuant to these terms defendant conveyed his interest in a six acre lot and the family residence located thereon to his wife. The wife also received in this property settlement a mobile home toter which she subsequently traded for a nineteen foot cabin cruiser.

Despite the dissolution of their marriage, the parties remained on friendly terms and the defendant often stayed at the couple's former residence with his ex-wife. In addition, he frequently gave his former wife his weekly paychecks. Defendant testified that he provided his wife with this money because it was necessary for the support of their four children.

Although the affidavit filed by defendant in response to plaintiff's request for a complete inventory of defendant's interests in real and personal property had stated that defendant did not have an interest in any real property, the trial transcript reveals that defendant was the joint owner of one and one-half acres of property on which his mother resided. Defendant testified that he did not include this property in his inventory because his only real interest in the property was as a surety on a note his mother had given to a local bank for the purpose of obtaining a loan. In addition to this interest, property tax records continued to reflect defendant's ownership in the six acre tract which he had deeded to his wife pursuant to the divorce decree of 1976.

The record also reveals that the defendant failed to disclose various items of personal property in his inventory. Among these items were a citizens band radio valued at $49 and a camper for the pickup truck worth approximately $200. Defendant stated at trial that he did not include these items because he believed them to be a part of the pickup truck which he had listed in his inventory. However, it should be noted that defendant valued his interest in the truck at zero dollars in his inventory. Furthermore, defendant held title to the vehicle and was the obligor under the terms of the security agreement thereon.

Finally, additional evidence was to the effect that the defendant had purchased a furnished travel trailer but that his wife had actually paid for it from her savings; ¹ that defendant had the right to use this trailer and the nineteen foot cabin cruiser anytime he wished; and that he had failed to list in his inventory a vacation fund which he held although apparently the amount of money in this fund was nominal.

On the basis of the above described evidence and testimony, the trial court granted plaintiff's motion to strike the personal property exemption claimed by defendant. From the trial court's order granting plaintiff's motion to strike, defendant appeals.

Defendant asserts a number of errors on appeal, each of which charges that the trial court erred in striking defendant's claim of exemption. Specifically, defendant maintains that in addition to the seventy-five percent exemption of wages provided by Title 6, chapter 10, section 7, he is also entitled to have the remaining twenty-five percent of his wages exempted from garnishment under the $1,000 personal property exemption set out in Title 6, chapter 10, section 6 (and the Alabama Constitution).

Defendant's first contention involves his claim that the amount of money which would have been immune from garnishment had the personal property exemption been granted was $500. Consequently, defendant argues that since the $500 exemption actually sought did not exceed the $1,000 personal property exemption he was entitled to, the trial court erred in striking his claim for the personal property exemption. We find little merit to this contention. The $500 which defendant wished to have declared free from garnishment under the personal property exemption amounted to twenty-five percent of his $2,000 monthly earnings. However, it should be noted that seventy-five percent, or $1,500, of these earnings was already immune from garnishment under the statutory wage exemption. Thus, while a debtor may have both exemptions the wage and the personal property exemption and thereby protect one hundred percent of his wages from garnishment, he cannot have both exemptions if the value of his personal property, including the amount of wages remaining after the wage exemption is taken, exceeds $1,000. Walker v. Williams & Bouler Construction Co., 46 Ala.App. 337, 241 So.2d 896 (1970). Accordingly, the issue in this case was not whether the amount which defendant actually sought to have exempted was less than $1,000, as $500 clearly was, but rather, whether defendant held personal property, which, when added to the $500 of wages remaining after $1,500 was freed from garnishment by the wage exemption, exceeded $1,000. Since the evidence presented at trial tended to show that the value of defendant's interest in various items of personal property plus the $500 not protected from garnishment under the wage exemption exceeded $1,000, the trial court acted properly in refusing to allow defendant to parlay his personal property exemption with his wage exemption to defeat garnishment by plaintiff. And the trial court's action was correct regardless of the fact that the amount of wages which would actually have been exempted by reliance on the $1,000 personal property exemption was less than $1,000.

As his next ground for asserting error by the trial court, defendant submits that even if his claimed exemption was excessive, the court was nevertheless in error because a motion to strike the excess portion of a...