McClanahan v. Hawkins, 6972
| Decision Date | 13 December 1961 |
| Docket Number | No. 6972,6972 |
| Citation | 367 P.2d 196,90 Ariz. 139 |
| Parties | Betty McCLANAHAN, Appellant, v. James C. HAWKINS and Nola I. Hawkins, his wife, Appellees. |
| Court | Arizona Supreme Court |
Hash & Bernstein, Phoenix, for appellant.
Snell & Wilmer and H. William Fox, Phoenix, for appellees.
The trial court granted summary judgment in favor of James C. Hawkins and Nola I. Hawkins, hereinafter called appellees, against Betty McClanahan, divorced wife of Alvis B. McClanahan, hereinafter called appellant, declaring that appellees were rightful owners of certain real property in Maricopa County, State of Arizona, conveyed to them by Alvis B. McClanahan.
The facts surrounding this litigation were as follows: On March 16, 1956 the Superior Court of the State of Arizona, Maricopa County, entered a decree of divorce whereby appellant, Betty McClanahan, was granted a divorce from Alvis B. McClanahan. One provision of the decree awarded the real property above-mentioned to Alvis B. McClanahan as his sole and separate estate. The decree also provided that he should make periodical payments to appellant for her support and the support of two minor children, and that he also should pay the sum of one hundred and fifty dollars as and for attorney's fees.
July 31, 1957, the decree of divorce was duly recorded. On October 8, 1957, McClanahan conveyed all of his right, title and interest in and to the real property to James C. Hawkins and Nola I. Hawkins. Three days later, October 11, 1957, McClanahan appeared in the Superior Court of Maricopa County in response to an order to show cause and was adjudged to be in arrears (1) in the payment of the attorney's fees, and (2) in the amount of $1,157 in support payments. On October 14, 1957, appellant caused a writ of execution to issue from the Superior Court of Maricopa County, and on October 17, 1957, said writ was levied against the property. Appellees thereupon instituted this action for a declaratory judgment that the decree of divorce be not a lien upon the real property.
Appellant contends that a judgment lien predicated upon her divorce existed by reason of the general lien statute, A.R.S. § 33-961, and § 33-964. She claimed that McClanahan could not alienate the property free and clear from such encumbrance. Appellees contended that the decree created no such encumbrance. The pertinent parts of the statutes read as follows:
' § 33-961 * * *
* * *'
' § 33-964 * * *
If there be a judgment lien it must exist by virtue of statute. Such liens did not exist at common law. Tway v. Payne, 55 Ariz. 343, 101 P.2d 455. See also 2 Freeman on Judgments, § 916.
Not every judgment directing the payment of money can become a lien prior to the levy of an execution. In order that a judgment operate as a lien under a general judgment lien statute, it must be final and conclusive, and the amount due must be definite and certain. Hageman v. Pinska, 225 Mo.App. 521, 37 S.W.2d 463; See cases under 30A Am.Jur., Judgments, § 483, p. 522; 49 C.J.S. Judgments § 458, p. 887.
The legislature in this state has given the court continuing jurisdiction to modify the portions of a divorce decree relating to payment of money for alimony or support or for the expenses of the proceedings. A.R.S. § 25-321. Hence, by express statutory declaration a divorce decree is not final and conclusive as to some of its terms and conditions, being continually subject to revision, alteration or amendment on petition of either party.
Nevertheless, this Court follows the majority of jurisdictions holding that such installments become vested when they become due. We have no power to modify the decree as to past-due installments. Cf. Crook v. Crook, 80 Ariz. 275, 296 P.2d 951, 58 A.L.R.2d 352; Johnson v. Johnson, 46 Ariz. 535, 52 P.2d 1162; Adair v. Superior Court for State of Arizona in and for Maricopa County et al., 44 Ariz. 139, 33 P.2d 995, 94 A.L.R. 328.
This immunity of accrued installments does not, however, change the inherent nature of the divorce decree, i. e., that the amount which ultimately may become due is uncertain, subject to the continuing court authority to augment or decrease the payments as changing conditions and needs of parties dictate. Without delving into the multifarious contingencies affecting amounts payable under divorce decrees we need merely mention a few events which ordinarily change or vacate orders for periodical payments and point up their inconclusive nature. 1
In the instant case when the appellant recorded the divorce decree in an attempt to place a lien upon her divorced husband's real property, the decree was not final in the sense that the alimony and support payments could still be modified or terminated. In this respect it was not within the contemplation of the general judgment lien statute.
While some authority expresses the view that an alimony award should be regarded as damages for breach of the marriage contract, it is generally agreed that alimony is an award designed to provide for the support and maintenance of the wife and is founded on the natural and legal duty which marriage imposes. The following quotation in 17 Am.Jur. at page 663 summarizes this general view:
'* * * A decree for alimony, therefore, is not, strictly speaking, due and payable either as damages or as a penalty; nor is it a debt in the strict legal sense of that term, but rather a judgment calling for the performance of a duty made specific by the decree of a court of competent jurisdiction. * * *'
This statement is also applicable to an order directing payment of child support.
The Arizona legislature has recognized the distinction between obligations and duties imposed by and under a decree of divorce and those imposed by an ordinary money judgment. Hence our statutes relating to the dissolution of marriage contain...
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Porter v. Porter
...execution and levied upon the hotel to satisfy an amount over $31,500. The July 21, 1959 judgment was a final judgment. McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196. The sheriff's sale was held August 20th and all of Mr. Porter's interest in the hotel was sold to Gladys who received a ......
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United States v. Limbs
...455 (1940) states that "Judgment liens are creatures of statute, and are governed by its terms." at 456. See also McClanahan v. Hawkins, 90 Ariz. 139, 367 P.2d 196-198 (1962), where the court interpreted a lien strictly, and Shartzer v. Ulmer, 85 Ariz. 179, 333 P.2d 1084, 1087 (1959), invol......
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Priessman v. Priessman, 2 CA–CV 2011–0071.
...or terminate.” Thus, spousal maintenance payments become vested and non-modifiable when they are due. See McClanahan v. Hawkins, 90 Ariz. 139, 142, 367 P.2d 196, 197 (1961) (no power to modify decree as to past-due installments); Jarvis v. Jarvis, 27 Ariz.App. 266, 267–68, 553 P.2d 1251, 12......
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Brumgard v. Gamble
...judgment lien statute, it must be final and conclusive, and the amount due must be definite and certain." McClanahan v. Hawkins, 90 Ariz. 139, 141, 367 P.2d 196, 197 (1961). "The priority of a judgment lien as against other lienholders is generally determined by the date of its recordation.......