Leifert v. Wolfer

• Decision Date: 26 October 1946
• Docket Number: 7016.
• Citation: 24 N.W.2d 690,74 N.D. 746
• Parties: LEIFERT v. WOLFER.
• Court: North Dakota Supreme Court

24 N.W.2d 690

74 N.D. 746

LEIFERT v. WOLFER.

No. 7016.

Supreme Court of North Dakota

October 26, 1946

Syllabus by the Court.

1.The jurisdiction of the district court in matters of divorce and alimony is conferred by statute and the power exercised by the court therein must find support in the statute or it does not exist.

2.While the district court, in an action for divorce, has power to decree alimony to the wife and to require future payments thereof for an indefinite period, subject to the power of the court to change the amounts and terms of payment, the district court has no power to decree that the provision for such payments is a lien upon all the property of or belonging to the husband and upon any and all moneys which he may hereafter attain and acquire as such provision is not a definite liability or a judgment for a specific amount so that it may become a lien upon the husband's property.

3.The lien of a judgment which in whole or in part directs the payment of money expires after ten years from the date of its docketing in the county where it was rendered unless renewed according to law.

4.The record is examined and it is held: that the portion of the judgment entered in the divorce action involved in this suit, which gave defendant judgment against her husband for $364, became a lien upon the real estate of the judgment debtor for a period of ten years from the docketing of the judgment; but the execution issued after the expiration of this ten year period and the purported sale of the real property under said execution were of no validity as such judgment had not been renewed according to law.

J. A. Coffey, of Jamestown (John Knauf, of Jamestown, of counsel), for appellant.

Rittgers & Hjellum, of Jamestown, and Nilles Oehlert & Nilles, of Fargo, for respondent.

BURR, Judge.

This is an action to quiet title to real property.The issues are narrowed to the points outlined in the statement of facts.

On August 3 1931, the defendant obtained a divorce from her husband and in the decree of divorce the court required him to pay certain household bills then due, attorneys' fees and costs (in all totaling $364), with child maintenance and alimony in the sum of $140 per month beginning August 4, 1931'until the further order of the Court.'

The decree provided:

'That * * * she have and is awarded judgment against defendant for said sums and debts as aforesaid, all in favor of the plaintiff and against the defendant and such judgment is made a lien upon any and all properties of and belonging unto him and any and all earnings and moneys and properties which he may hereafter attain or acquire; * * *.'(Italics ours.)

The judgment of the court, docketed August 3, 1931, is final so far as the divorce is concerned; and in so far as it directs payment of the bills, attorneys' fees, costs, etc., and otherwise has not been modified.

Section 28-2013 of the Revised Code provides that: 'a judgment which, in whole or in part, directs the payment of money,' may be docketed and that: 'judgment shall be a lien on all the real property, except the homestead, of every person against whom any such judgment is rendered which he may have in any county in which such judgment is docketed at the time of docketing or which he thereafter shall acquire in such county, for ten years from the time of docketing the same in the county in which it was rendered.'Defendant's judgment 'in part' directed the payment of money.

The statutes of this state provide:

'When a divorce is granted, the court shall make such equitable distribution of the real and personal property of the parties as may seem just and proper, and may compel either of the parties to provide for the maintenance of the children of the marriage, and to make such suitable allowances to the other party for support during life or for a shorter period as to the circumstances just, having regard to the circumstances of the parties respectively.The court from time to time may modify its orders in these respects.'Sec. 14-0524, Rev.Code.

'The court may require either party to give reasonable security for providing maintenance or making any payments required under the provisions of this chapter, and may enforce the same by appointment of a receiver or by any other remedy applicable to the case. * * *.'Sec. 14-0525, Rev.Code.

This latter section provides further that the court may assign the homestead to the innocent party.Our statutes do not provide specifically that the court may make its judgment and decree for alimony, to be paid in the future in stated allowances and for an indefinite term and always subject to the power of the court to revise, a perpetual lien upon the property of the husband.Authority therefor must come from some other source, if at all.

At the time of the divorce the husband was the owner of the real property described in this action.April 19, 1945, he deeded it to one Fode, and on June 15, 1945 Fode deeded it to the plaintiff, both deeds being recorded August 2, 1945.

In November of 1945 the clerk of the district court, without any authorization by the Court and with no other judgment entered, issued a special execution directed against this property.The sheriff levied upon the real property and sold the same to her for $8000 which she credited upon the amount which she claims was due her from her former husband.The sheriff issued a certificate of sale, and the sale was confirmed by the court, December 28, 1945.

On December 10, 1945, plaintiff commenced this action to determine adverse claims.His complaint is in the usual statutory form.The defendant answered, claiming a lien upon the property by virtue of the provision of the decree of divorce already quoted.

The plaintiff replied denying that any provision in this decree of divorce 'ever was or constituted any lien upon the premises described in the complaint, for the reason that the same was not a judgment for any specific sum of money but was a judgment only for divorce between said parties and requiring the defendant therein to pay monthly sums of money for the support of his family including plaintiff therein, and same was not docketed.

'Plaintiff further alleges that the said divorce judgment was rendered and filed, but not docketed, in the office of the clerk of the court having jurisdiction thereof, on or about the 3rd day of August, 1931, and that no proceedings were ever there after or within 10 years from said date, taken or had and no affidavit was filed with the clerk of said court for the renewal of said judgment, and that at the time of the commencement of this action more than ten years, to-wit: fourteen years, had elapsed since the original filing of said judgment of divorce in the said action.And plaintiff denies all other allegations of said answer.'

The trial court found for the plaintiff, holding that the defendant had no lien upon the property described and the defendant appeals from the judgment.

In State ex rel. Hagert v. Templeton, etc., 18 N.D. 525, 123 N.W. 283, 25 L.R.A.,N.S., 234, we show that, 'Jurisdiction in matters relating to divorce and alimony is conferred by statute, and the power of the courts to deal with such matters must find support in the statute, or it does not exist.'We show therein the fundamental change between the ancient and more modern view with reference to matters pertaining to divorce and the authority of the courts in the matter of alimony.We show 'The authority to grant such allowance (in that case alimony to the husband) if any such authority exists, must be by virtue of the Constitution or statutes of this state.'We show this theory of 'authority' had been the former holding of the court, citing Glynn v. Glynn, 8 N.D. 233, 77 N.W. 594, where appeal was made to the court to grant the wife alimony where divorce was granted because of her fault.We said, 'In the absence of statute, the rule is inexorable that no alimony can be allowed where a divorce is granted for the fault of the wife.'We show the transition of jurisdiction in divorce matters from the conception of ancient times to that of modern.We quote with approval this comment from Cizek v. Cizek, 69 Neb. 797, 96 N.W. 657, 99 N.W. 28, 5 Ann.Cas. 464:

'Matters pertaining to divorce, separation, and alimony were originally of ecclesiastical cognizance; but in this country they have always been regulated by statute, and we think the courts have always looked to the statute as the source of their power.'In this Templeton case we approve this excerpt from Barker v. Dayton, 28 Wis. 367:

"It is an undoubted general principle of the law of divorce in this country that the courts, either of law or equity, possess no powers except such as are conferred by statute; and that, to justify any act or proceeding in a case of divorce, whether it be such as pertains to the ground or cause of action itself, to the process, pleadings, or practice in it, or to the mode of enforcing the judgment or decree, authority therefor must be found in the statute, and cannot be looked for elsewhere, or otherwise asserted or exercised."18 N.D. at page 527, 123 N.W. at page 284, 25 L.R.A.,N.S., 234.

In this Templeton case we discuss the question of the general equity powers of the district court.The argument had been advanced that independent of statute the general equity powers of the court were such that because of 'reciprocal duties upon the husband and wife for support and maintenance'the courts had general equity powers to deal with the relations between husband and wife.But we say:

'The fundamental error running through relator's entire argument is that the jurisdiction to grant divorces and to allow alimony and suit money is included within the general...