Korczyk v. Solonka

• Citation: 130 W.Va. 211
• Decision Date: 20 May 1947
• Docket Number: (CC 720)
• Parties: Sophia Korczyk, et al. v. Emil Solonka, et al.
• Court: Supreme Court of West Virginia

130 W.Va. 211

Sophia Korczyk, et al.

v.Emil Solonka, et al.

(CC 720)

Supreme Court of Appeals of West Virginia.

Submitted April 15, 1947.

Decided May 20, 1947.

1. Divorce

Matured installments provided for in a decree ordering the payment of specified monthly sums by a husband to his wife, for the maintenance and support of their children, stand as decretal judgments against the man charged therewith and constitute a lien on his real estate under Code, 38-3-6.

2. Divorce

A woman who has been divorced from her husband and awarded monthty payments, to be made by the husband to her for the support and maintenance of their children, may maintain a suit to enforce the lien of the decree respecting matured and unpaid installments.

3. Limitation of Action

The limitation provided in Code, 38-3-18, applied to a decretal judgment payable in installments, commences to run when each installment becomes due, as to the part of said judgment then payable.

Certified from Circuit Court of Raleigh County.

Suit by Sophie Korczyk and others against Emil Solonka and others to subject the real and personal property of the named defendant to the satisfaction of a judgment. The trial court sustained a demurrer to the bill of complaint and certified certain questions to the Supreme Court of Appeals for answer.

Reversed.

B. F. Howard, for plaintiffs. Clay S. Crouse, for defendants.

Lovins, Judge:

The purpose of this suit, brought in the Circuit Court of Raleigh County by Sophia Korczyk, in behalf of her- self, Frank Solonka, Steven Solonka, Helen Solonka, and Elsie Solonka, and all other lien creditors of Emil Solonka, against Emil Solonka and Jennie Solonka, is to subject the real and personal property of Emil Solonka to the satisfaction of a decretal judgment rendered by the Circuit Court of Logan County on July 29, 1929.

The suit arises in this manner: Sophia Korczyk and Emil Solonka were married in 1917. Four children were born of their marriage, namely, Frank, Steven, Helen and Elsie Solonka. Sophia Korczyk, then Sophia Solonka, instituted a suit for divorce against Emil Solonka in the Circuit Court of Logan County, and that court on the 29th day of July, 1929, pronounced a decree, awarding her a divorce from bed and board, granting her the sole custody and control of the children, decreeing that Emil Solonka pay to Sophia Solonka the sum of forty dollars a month for the maintenance of the above-mentioned children until the further order of the court, and adjudged costs against Emil Solonka in the sum of $80.75. The ages of the children at the time of the divorce were eight years, six years, four years, and seventeen months, respectively. At the time of the institution of this suit the ages of said children were twenty-four, twenty-two, twenty and eighteen years, respectively.

Emil Solonka made no payments of either the monthly sums decreed for the support and maintenance of his children or the court costs. Plaintiff alleges that since the divorce was awarded she has supported and educated the said children by her own efforts, and without the aid of said Emil Solonka; but she does not aver that she has actually expended the sum of forty dollars each month for the support of said children.

The unpaid installments of the decretal judgment entered by the Circuit Court of Logan County, calculated to October 1, 1945, amounts to $11,464.20, which evidently includes interest on said installments.

The plaintiff caused an execution to be issued upon said decretal judgment on the 21st day of October, 1945, which was directed to and placed in the hands of the Sheriff of Raleigh County, who returned said execution "No property found out of which the within execution can be made." She obtained an abstract of the decretal judgment rendered by the Circuit Court of Logan County, and placed the same on record in the office of the Clerk of the County Court of Logan County, and on November 8, 1945, likewise caused said abstract to be recorded in the Judgment Lien Docket in the office of the Clerk of the County Court of Raleigh County.

Emil Solonka, at the time of the recordation of the aforesaid abstract of judgment, was, and, so far as is shown by the record, is now the owner of one tract of land and the surface of another tract of land situate in Raleigh County, West Virginia, and is the lessee of a building to be used as a dwelling house and for commercial purposes owned by Price Hill Colliery Company.

Emil Solonka is the owner of a restaurant and mercantile business conducted under the name of "The Spinning Wheel" at Cranberry, Raleigh County, in the name of his present wife, Jennie Solonka. Plaintiff asserts that the merchandise, fixtures, equipment and business of said Spinning Wheel are subject to the satisfaction of the said decretal judgment and the execution issued thereon.

This suit is brought by plaintiff on behalf of herself, her children, and all other lien creditors of said Emil Solonka. She prays that the liens may be ascertained and their priorities established; that the interest of Emil Solonka in the goods, wares, merchandise and business used in "The Spinning Wheel" be ascertained; and that the real estate and personal property, or so much thereof as may be necessary, be sold to pay off and discharge her lien.

The trial court sustained a demurrer to the bill of complaint and certified eight questions arising on the demurrer which, so far as pertinent, are substantially as follows: (1) Is the bill of complaint sufficient to justify granting the relief prayed for; (2) is the lien created by the decretal judgment rendered by the Circuit Court of Logan County enforceable against the real estate of the defendant in this suit; (3) does the trial court have jurisdiction of this suit; (4) may the plaintiff maintain this suit in behalf of herself and her children, or should said children have been joined as parties plaintiff; (5) if this suit is otherwise maintainable, is it necessary to allege that plaintiff has expended $40.00 each month for the support and maintenance of her children; and (6) is the relief sought by the plaintiff barred by laches or the statute of limitations?

An examination of the bill of complaint in the instant case and the exhibits filed therewith discloses an inconsistency in that the bill alleges that plaintiff was granted a divorce by the Circuit Court of Raleigh County. But the exhibits filed with said bill clearly show that plaintiff instituted her suit for divorce in the Circuit Court of Logan County and prosecuted the same to a final decree in that county. We are not disposed to regard that inconsistency as material, and regard the exhibits as being correct and that the decree awarding payments to plaintiff for the support of her four children was pronounced by the Circuit Court of Logan County, West Virginia.

The first question above stated is inclusive of the other questions and an answer to questions 3, 4, 5 and 6 will partially answer that question. But the second question stated is implicit in question No. 1 and, therefore, we answer question No. 2 in the discussion immediately following.

The bill of complaint in the divorce suit contains no prayer for alimony as such, and the decree of divorce does not, in terms, grant plaintiff alimony. The installments of forty dollars a month decreed to plaintiff were designated as being for the maintenance of the four children of plaintiff and defendant.

Alimony has been variously defined, and in some instances it has been held that a court of equity possesses inherent power to decree alimony. Reynolds v. Reynolds, 68 W. Va. 15, 24, 69 S. E. 381; Stewart v. Stewart, 27 W. Va. 167, 172, 173. Moreover, the Legislature has specifically authorized a court of equity to make "* * * such further decree as it shall deem expedient, concerning the maintenance of the parties, or either of them; * * * concerning the care, custody, education and maintenance of the minor children; * * *. For the purpose of making effectual any order or decree provided for in this section the court may make any order or decree concerning the estate of the parties, or either of them, as it shall deem expedient." Code, 48-2-15.

It has been held that alimony arises from the legal obligation of the husband to maintain his wife in the manner suited to his means and social position. Reynolds v. Reynolds, supra. For other definitions of alimony and discussions of the power of courts to decree with reference thereto, see Burdette v. Burdette, 109 W. Va. 95, 99, 153 S. E. 150; Norman v. Norman, 88 W. Va. 640, 645, 107 S. E. 407; Games v. Games, 111 W. Va. 327, 161 S. E. 560; Watson v. Watson, 113 W. Va. 267, 168 S. E. 373.

In the case of Elam v. Elam (Va.), 29 S. E. 2d 222, 224, a distinction is implicitly made between alimony and money to be paid to the wife for the maintenance of the children. But for the purpose of answering the questions here certified, we do not think there is any rational basis for a distinction between alimony decreed to a wife to be paid in installments and sums decreed in the same manner to be paid the wife for the maintenance of the children. Therefore, the decisions of this Court with reference to alimony are determinative of the questions here considered.

Permanent alimony, payable in installments, is a personal decree and constitutes a lien upon the land of the husband. Goff v. Goff, 60 W. Va. 9, 53 S. E. 769; Smith v. Smith, 81 W. Va. 761, 95 S. E. 199. See Code, 38-3-6. In the absence of any means to enforce it, the real estate of the defendant, against whom alimony has been decreed, may be sold to satisfy the decree. Foggin v. Furbee, 89 W. Va. 170, 109 S. E. 754; Gam v. Gerling, 109 W. Va. 241, 153 S. E. 504; Murray v. Price, 114 W. Va. 425, 431, 172 S. E. 541; Duncan v. Duncan, 119 W. Va. 471, 194 S. E. 433. If there is no fraud or other judicially cognizable and harmful circumstance in the procurement of a decree for alimony, accrued installments of alimony are vested,...