Pickle v. Pickle, 55660
| Decision Date | 25 September 1985 |
| Docket Number | No. 55660,55660 |
| Citation | 476 So.2d 32 |
| Parties | Thelma B. PICKLE v. David Lee PICKLE. |
| Court | Mississippi Supreme Court |
William B. Seale, Taylor & Whitwell, Southaven, for appellant.
Paul R. Scott, Wilroy, Lee & Scott, Hernando, for appellee.
Before ROY NOBLE LEE, P.J., and ROBERTSON and ANDERSON, JJ.
Thelma and David Lee Pickle were divorced on January 26, 1982, by the decree of a Texas court. Among other things, the divorce decree ordered David Lee Pickle to pay $350 per month in child support and effected a division of their community property, including real estate. David Lee Pickle is the owner of an undivided one-half interest in certain real property in DeSoto County, Mississippi, totalling 113 acres. The Texas court also gave a judgment for Thelma Pickle in the amount of $30,750 representing her interest in community funds improperly removed from the community bank accounts by her ex-husband and the amount of delinquent temporary child support which he refused to pay while the divorce was pending.
David Lee Pickle neglected to pay any of this debt, whereupon Thelma filed a complaint on April 21, 1982, in the Circuit Court of DeSoto County asking for a judgment in the sum of $30,750 based on the Texas decree. David Lee Pickle did not answer or appear, and on June 1, 1982, a default judgment was rendered against him in the full amount of the debt.
Thelma Pickle could still get no satisfaction from her ex-husband and filed a request for execution on January 5, 1984, seeking to levy upon the 113 acres which he held in DeSoto County. A writ of execution was issued to the DeSoto County Sheriff on January 9. On January 25, David Lee Pickle executed and recorded a homestead declaration under the provisions of Mississippi Code Annotated, Section 85-3-25 (1972) selecting the 113 acres as his homestead. On February 7, 1984, counsel for David Lee Pickle appeared in the Circuit Court of DeSoto County, and made a motion for a temporary injunction. The motion alleged that the sheriff had advertised the property for sale at a public auction to occur on March 1, 1984. David Lee Pickle also prayed that the court issue a preliminary injunction barring the sale and that on a hearing this injunction be made permanent.
On February 24, 1984, the trial judge held a hearing on David Lee Pickle's motion for a preliminary injunction. On February 29 he granted the injunction and ordered it made permanent. In making this order, he found that David Lee Pickle had properly executed his declaration and was entitled to hold the 113 acres as homestead property. Further, he found that since the decree of the Texas court was not an award of alimony, it was merely a money judgment and placed no specific lien on the acreage. He therefore held that the Texas decree created no rights in Thelma Pickle superior to the homestead rights of her ex-husband.
Thelma Pickle's appeal of that order is now before this Court. It is clear that David Lee Pickle is indeed entitled to claim the 113 acres as his homestead. Mrs. Pickle cites numerous cases to the contrary. All of her authority, however, is based on our old statute, which required that the claimant of a homestead exemption be a householder with a family. Appellant overlooks the fact that in 1979 the statute was amended to make householders eligible for the exemption even if they are single. The current statute, MCA Sec. 85-3-21 (Supp.1984), requires only that the claimant be a citizen of Mississippi, a householder and one who occupies the land in question as a residence. David Lee Pickle obviously meets these requirements as the court below recognized.
For purposes of this case, the more important question is whether or not the Texas decree created rights in Mrs. Pickle which take precedence over David Lee Pickle's homestead exemption. The court below found that it did not. Insofar as the Texas decree was based on a division of the community property, the trial judge was clearly correct. We have no statutory or common law authority for holding that a judgment based on a division of community property is not subject to the homestead exemption. It is a debt like any other.
Both sides concede that in Mississippi, the homestead exemption cannot be used to defeat an award of alimony. They have little choice since our rule in this regard is clear. Felder v. Felder's Estate, 195 Miss. 326, 13 So.2d 823 (1943). The Texas divorce decree underlying this judgment did not make an award for alimony; indeed it could not have since Texas does not allow permanent alimony. Francis v. Francis, 412 S.W.2d 29, 32 (Tex.1967). In the present case, ...
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