Quality Carpets, Inc. v. Carter, 89-557

• Decision Date: 08 March 1991
• Docket Number: No. 89-557,89-557
• Citation: 133 N.H. 887,587 A.2d 254
• Parties: QUALITY CARPETS, INC. v. Lloyd CARTER, Jr.
• Court: New Hampshire Supreme Court

Page 254

587 A.2d 254

133 N.H. 887

QUALITY CARPETS, INC. v. Lloyd CARTER, Jr.

No. 89-557.

Supreme Court of New Hampshire.

March 8, 1991.

[133 N.H. 888] Rinden Professional Association, Concord (John J.A. Schrepfer on the brief), by brief for plaintiff.

Lloyd Carter, Jr., pro se, filed no brief.

New Hampshire Legal Assistance, Manchester (Karen L. Rosenberg on the brief), by brief for Ralph and Ruth Tibbetts, and John and Julia Dow, as amici curiae.

MEMORANDUM OPINION

BROCK, Chief Justice.

The plaintiff, Quality Carpets, Inc., appeals from an order of the Superior Court (McGuire, J.) staying execution and levy on defendant's real estate and requiring the defendant to make periodic payments on the judgment against him. The plaintiff asserts that the court's ruling contravenes RSA 524:6-a (Supp.1990) and that its rights to procedural due process were violated in that it did not have an opportunity to present evidence on the issue of periodic payments. We affirm.

The relevant facts are as follows. The plaintiff obtained a default judgment against the defendant in the amount of $4,896.76 and then obtained a writ of execution and sought to levy on real estate owned by the defendant. The defendant then filed a motion to stay execution and for weekly payments on the judgment. After a hearing, the trial court granted the stay and ordered a lump sum payment of $1,000 and payments of $200 per month thereafter.

On appeal, the plaintiff contends that the superior court's order is contrary to RSA 529:1, :19, and RSA 524:6-a (Supp.1990), because the debtor has no statutory right to request a stay of levy of execution by offering to make periodic payments.

Our inquiry begins with an examination of the statutory language of RSA 524:6-a (Supp.1990) and RSA 529:1, :19. Appeal of Coastal Materials Corp., 130 N.H. 98, 101, 534 A.2d 398, 399 (1987). "The words in the statute itself are the touchstone of the legislature's intention." Id. We will construe statutes "so as to effectuate their evident purpose." State v. Sweeney, 90 N.H. 127, 128, 5 A.2d 41, 41 (1939), quoted in White v. Lee, 124 N.H. 69, 74, 470 A.2d 849, 852 (1983).

RSA 524:6-a (Supp.1990) states that the court "shall either at the time of rendition of the judgment inquire of the defendant as to his ability to pay the judgment in full or upon petition of the plaintiff after judgment order the defendant to appear in court for such inquiry and, at either time, order the defendant to make such periodic payments as the court in its discretion deems appropriate." RSA 524:6-a (Supp.1990). RSA 524:6-a expressly requires the court to inquire of the defendant as to his ability to pay the judgment in full. See Sheedy v. Merrimack Cty. Super. Ct., 128 N.H. 51, 55, 509 A.2d 144, 147 (1986).

The legislative history of RSA 524:6-a (Supp.1990) recognizes that the statute essentially codified the existing inherent powers of the judge to order a defendant to make periodic payments. Hearings before the Senate Committee on Judiciary, at 2 (March 26, 1975) (testimony of Sen. Monier); see also S.B. 97, N.H.S. Jour. 223 (1975); S.B. 97, N.H.H.R. Jour. 781 (1975). Nothing in the legislative history suggests that if the court fails to make the required inquiry on the day of judgment, or on plaintiff's motion, that it is precluded from doing so at another time. See Hearings before the Senate Committee on Judiciary, supra at 1-4; S.B. 97, N.H.S. Jour. 223 (1975); S.B. 97, N.H.H.R. Jour. 781 (1975).

In the case before us, the defendant defaulted at both the liability and assessment of damages stages of the proceeding. Appearing pro se throughout the proceedings, he attended the hearing relating to the issuance of the writ of execution, but the court failed to inquire as to his ability to pay the judgment at that time. The court eventually made the inquiry at the hearing held on defendant's motion to stay execution and request for weekly payments. We find nothing,...