Sparks v. East
| Decision Date | 23 November 1926 |
| Docket Number | 37570 |
| Parties | H. J. SPARKS, Appellant, v. EDWIN EAST, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--JOHN FLETCHER, Judge.
Proceeding in garnishment. The opinion states the facts. The garnishee was discharged on motion of the defendant, and plaintiff appeals.
Reversed.
Franklin Brown and E. Everette Brown, for appellant.
No appearance for appellee.
VERMILION J. DE GRAFF, C. J., and STEVENS and FAVILLE, JJ., concur.
There is no dispute as to the facts. The appellant, holding an unsatisfied judgment against the appellee, caused execution to be issued thereon, and levied by the garnishment of appellee's employer, an interurban railway company. The garnishee answered that it was indebted to the appellee. Thereupon, the appellee appeared, and moved to discharge the garnishment, on the ground that he was the resident head of a family, and that the debt due him from the garnishee was wages for his personal services during the preceding two weeks prior to the garnishment, and was, therefore, exempt from execution.
The notice of garnishment was served about August 1, 1925. By decree entered on June 16, 1925, the appellee's wife was granted an absolute divorce from him. She was awarded the custody of their two minor children; certain real estate was decreed to be hers absolutely; and she was given the household goods. The defendant therein, the appellee here was ordered to pay to the plaintiff in that action the sum of $ 80 per month as alimony until the further order of the court.
The question presented is whether a debtor whose wife has secured an absolute divorce from him, with the custody of their minor children and an award of permanent alimony in the nature of future payments to be made by him, is entitled to hold as exempt from execution the earnings for his personal services within 90 days prior to the levy, as the head of a family, under Section 11763, Code of 1924.
It is to be observed that no right of the divorced wife's under her judgment for alimony is involved. She is not a party to the proceeding. That there would be no exemption as against her judgment for alimony is provided by statute. Sections 11764 and 11765, Code of 1924. These provisions of the statute first appeared in the Acts of the Thirty-eighth General Assembly, and were, it would seem, enacted to meet the situation created by the holding in Schooley v Schooley, 184 Iowa 835, 169 N.W. 56, that, where a divorced husband had remarried, and was the head of a family, his personal earnings were exempt from execution on a judgment for alimony in favor of his former wife. These sections throw no light on the present question. Section 11763 is as follows:
"The earnings of a debtor, who is a resident of the state and the head of a family, for his personal services, or those of his family, at any time within ninety days next preceding the levy, are exempt from liability for debt."
The exemption provided for by this section is to the resident head of a family. There is no dispute that the appellee was at all times a resident of the state. Was he, after the divorce, the head of a family? After the divorce, neither his wife nor his children resided with the appellee.
In Armstrong-McClenahan Co. v. Rhoads, 180 Iowa 710, 163 N.W. 356, where, upon procuring a divorce, the wife was awarded the custody and control of the minor children and permanent alimony in a lump sum, and, at the time of the decree, the husband turned over certain property to the wife's parents, in consideration of their agreement to keep and care for the children, and also, after the divorce, contributed to the support of his children, but the children did not live with the father, we held that he was not the head of a family.
We are not favored with an argument on behalf of appellee, and are not advised how, if at all, he would distinguish the present case from that. The only distinction apparent is that there the alimony awarded the wife was in a lump sum, and the husband made a permanent arrangement for the support...
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