Sauls v. Howell

• Decision Date: 10 November 1983
• Docket Number: No. 15872,15872
• Court: West Virginia Supreme Court
• Parties: Kathy Ann SAULS v. H.H. HOWELL, in his official Capacity of Clerk of the Circuit Court of Boone County, West Virginia.

Page 26

309 S.E.2d 26

172 W.Va. 528

Kathy Ann SAULS v. H.H. HOWELL, in his official Capacity of Clerk of the Circuit Court of Boone County, West Virginia.

No. 15872.

Supreme Court of Appeals of West Virginia.

Nov. 10, 1983.

Syllabus by the Court

1. Matured, unpaid installments provided for in a decree of divorce, which decree ordered a husband to pay to his former wife $2,700, "in lieu of alimony" at $150 per month, stand as decretal judgments against the husband, and the wife is entitled to institute suggestion proceedings under W.Va.Code, 38-5-10 [1931], to recover upon those judgments, and she need not institute ancillary proceedings to reduce the amount of those judgments to a sum certain.

2. A judgment debtor is entitled to notice that suggestion proceedings under chapter 38, article 5, of the West Virginia Code have been instituted by a judgment creditor, and the judgment debtor shall be entitled pursuant to that notice to a copy of the summons issued under the provisions of W.Va.Code, 38-5-10 [1931], upon the suggestion.

Margaret Gould and Timothy R. Murphy, Charleston, for appellant.

No appearance for appellee.

McHUGH, Justice:

This action is before this Court upon the petition of Kathy Ann Sauls for an appeal from the final order of the Circuit Court of Boone County, West Virginia. Pursuant to that order, dated April 14, 1983, the circuit court denied relief to the appellant in a mandamus proceeding instituted in that court by the appellant against the appellee, H.H. Howell, Clerk of the Circuit Court of Boone County. This Court has before it the petition for appeal, all matters of record and the brief of the appellant. No brief has been filed in this Court by the appellee.

By order entered on April 19, 1983, this Court granted the appellant's appeal to this Court. Subsequently, pursuant to W.Va.Code, 58-5-25 [1931], we granted the appellant's motion for leave to move to reverse.

The facts in this action are not in dispute. By order entered on September 22, 1981, the appellant, Kathy Ann Sauls, was granted a divorce from her husband, Mitchell Jay Sauls. In that order, Mitchell Jay Sauls was directed to pay the appellant $200 per month for the support of their minor child. That order further directed Mitchell Jay Sauls to pay to the appellant a certain amount "in lieu of alimony." The order stated as follows:

It is further Adjudged, Ordered, and Decreed that Paragraph Number 7 of the written property settlement agreement of the parties hereto, dated the 20th day of July, 1981, is hereby modified as follows: the defendant shall pay unto the plaintiff the sum of One Hundred Fifty ($150.00) Dollars per month, commencing six (6) months from this day, for a period of eighteen (18) months, totalling Twenty-Seven Hundred ($2,700.00) Dollars, said periodic support payments to be paid in lieu of alimony.

* * *

* * * It is further Adjudged, Ordered, and Decreed, that the written property settlement agreement of the parties hereto, dated the 20th day of July, 1981, be, and the same is hereby made the Court's ruling, with the exception of Paragraph Number 7 therein which has been modified above, and is made a part of this Order, attached hereto, and incorporated herein.

On February 23, 1983, the appellant, pursuant to W.Va.Code, 38-5-10 [1931], requested at the office of the appellee that a summons upon a suggestion be issued against the United States Steel Corporation. As the appellant asserts in her petition for appeal, the appellant believed that United States Steel had profit-sharing funds in its possession which it owed to Mitchell Jay Sauls. The appellant, by way of suggestion, sought those profit-sharing funds because, as the appellant asserts, Mitchell Jay Sauls had failed to make payments with respect to his obligation to pay to the appellant the $2,700 "in lieu of alimony."

The appellee, however, refused to issue the summons upon the suggestion. That refusal to issue the summons was based upon the fact that the appellant had not instituted proceedings in circuit court subsequent to the initial order of September 22, 1981, to determine the amount owed to the appellant by Mitchell Jay Sauls. In that regard, the parties stipulated in circuit court as follows:

It is the practice of the respondent clerk's office to refuse to issue a summons directed to a suggestee in situations involving judgments providing for periodic payments, such as alimony or child support, unless the present amount due has been determined in a court proceeding subsequent to the entry of the original decree; the usual procedure is to first have a rule issued upon the judgment creditor's petition directing the judgment debtor to show cause why he should not be held in contempt for his alleged failure to pay the amounts due under the divorce decree; after notice to the judgment debtor and hearing, the total amount due and owing at the time of the hearing is determined and judgment for that amount is then entered; upon entry of such a judgment, the respondent clerk's office will then issue a summons upon the suggestion of the judgment creditor.

The appellant subsequently instituted a mandamus proceeding in the circuit court to compel the appellee to issue the summons upon the suggestion. The circuit court, after conducting a hearing, denied relief to the appellant. It is from that denial of relief, reflected in the April 14, 1983, order of the circuit court, that the appellant appeals to this Court.

We begin our discussion by considering the nature of the decree entered on September 22, 1981, which directed Mitchell Jay Sauls to make the monthly payments "in lieu of alimony." That decree was clearly a judgment for money within the meaning of W.Va.Code, 38-3-1 [1931]. ¹

This Court has held that matured installments provided for in a decree, which orders the payment of monthly sums for alimony or child support, stand as "decretal judgments" against the party charged with the payments. Hopkins v. Yarbrough, 168 W.Va. 480, 284 S.E.2d 907, 910 (1981), involving child support; syl. pt. 1, Korczyk v. Solonka, 130 W.Va. 211, 42 S.E.2d 814 (1947), involving child support; Syl. pt. 1, Holcomb v. Holcomb, 122 W.Va. 293, 8 S.E.2d 889 (1940), involving alimony; Harman v. Harman, 120 W.Va. 199, 200, 196 S.E. 361, 362 (1938), involving alimony.

Under the circumstances of this case, we see no reason to distinguish court ordered monthly payments "in lieu of alimony" from court ordered monthly payments of alimony or child support, as far as the above reference to decretal judgments is concerned. The matured, unpaid installments Mitchell Jay Sauls had been directed to pay under the September 22, 1981, divorce decree stand as decretal judgments against him and in favor of the appellant. Furthermore, the appellant was not required to institute ancillary judicial proceedings to reduce the amount of those judgments to a sum certain as a condition to the institution of suggestion proceedings under W.Va.Code, 38-5-10 [1931].

In Korczyk, the plaintiff, in 1929, obtained a divorce from her husband, and the husband was ordered to pay the plaintiff $40 per month for the maintenance of their children. The husband failed to make those payments. In 1945, an execution issued upon the decretal judgment was returned "no property found," and an abstract of the judgment was recorded by the plaintiff in the office of the clerk of the county [then court] commission. In addition, the plaintiff, asserting that the husband, in fact, owned property, instituted an action in circuit court to subject that property to the satisfaction of the 1929 decretal judgment.

This Court held in Korczyk that the plaintiff's action against her former husband could be maintained in circuit court. In so holding, this Court rejected an assertion that, because the plaintiff had instituted no action to determine the amount of money due and payable under the decree of divorce, the circuit court was without jurisdiction to entertain the plaintiff's action to subject the husband's property to the decretal judgment. Comparing child support payments to alimony payments, this Court stated as follows:

We know of no statute or decided case in this jurisdiction requiring an ancillary proceeding to determine the amount of alimony due from a man to his former wife. A simple mathematical calculation will generally suffice to ascertain the amount due. Such action is administrative and would require no juristic determination.

130 W.Va. at 216; 42 S.E.2d at 818.

Language consistent with the above quoted language of Korczyk is found in Kephart v. Kephart, 193 F.2d 677 (D.C.Cir.1951), cited by the appellant. In that case, a wife brought an action against her former husband to recover unpaid monthly alimony installments. The former husband had been ordered to pay those installments pursuant to a divorce decree. In Kephart, the District of Columbia Court of Appeals set forth the following question: "[I]s a decree directing future payment of alimony in itself a judgment for money, or must it be supplemented by a new judgment entered for installments as they mature?" The court answered that question by concluding that it was not necessary for the wife to obtain a new judgment reflecting the amount of the unpaid alimony installments. The court stated as follows:

[W]e hold that an award of alimony is a judgment for money, on which execution may issue. It is perhaps convenient, and certainly not improper, for the court to enter a new judgment establishing of record the accrued installments which are unpaid, when the wife draws the facts to the court's attention. But that procedure is not essential. Installments which have become due are easily calculated from the terms of the original decree and a look at the calendar. The wife's application for a writ of execution accompanied by her affidavit as to non-payment should move the issuance of the writ; if an issue is raised concerning the...