White v. White
| Citation | 636 P.2d 844,195 Mont. 470,38 St.Rep. 2041 |
| Decision Date | 25 November 1981 |
| Docket Number | No. 81-256,81-256 |
| Parties | Mildred WHITE, Plaintiff and Appellant, v. Manuel WHITE, Defendant and Respondent. |
| Court | United States State Supreme Court of Montana |
Milodragovich, Dale & Dye, Missoula, for plaintiff and appellant.
Kline & Niklas, Helena, for defendant and respondent.
The sole question in this appeal is whether the earnings of a judgment debtor for his personal services are exempt from execution on a judgment for unpaid alimony. The District Court held such earnings exempt. We affirm.
On February 22, 1980, appellant Mildred White obtained a judgment for delinquent alimony payments against respondent Manuel White in the Superior Court of Spokane, Washington. This judgment was sued upon in the District Court of Lewis and Clark County, Montana in May, 1980, and reduced to judgment in the sum of $39,502.65 in the Montana Court in December, 1980.
Following entry of judgment, respondent Manuel White filed an affidavit of exemption pursuant to section 25-13-614, MCA, claiming that his earnings for his personal services were necessary for the use of his family supported in whole or in part by his labor and therefore were exempt from execution. Attached to the affidavit of exemption was a statement indicating his net monthly income was approximately $2,600 and an itemization of his monthly expenses necessary to support his family in the total amount of approximately $2,975 for a net monthly deficit of approximately $375. No issue was raised in the District Court concerning the validity of any of the items claimed as necessary for the support of his family.
In January, 1981, appellant Mildred White submitted a writ of execution for issuance by the clerk of court of Lewis and Clark County. She filed a supporting brief claiming that Montana's exemption statute has no application to an execution based upon a judgment for delinquent alimony payments and therefore appellant's claim of exemption of his earnings was invalid.
On May 18, 1981, the District Court ordered the clerk of court to deny appellant's request for a writ of execution "there being no legal cause shown ... why the earnings of the defendant (appellant here) for his personal services should not be exempt under said statute." (Bracketed identification added.)
Appellant Mildred White has appealed from the District Court's order denying the issuance of a writ of execution.
Montana's exemption statute provides in pertinent part:
"(2) The words 'his family', as used in this section, are to be construed with the words 'head of family', as used in 70-32-102". Section 25-13-614, MCA.
"Head of family" is defined in section 70-32-102, MCA, in pertinent part in the following language:
Appellant Mildred White contends that Montana's exemption statute has no application to a claim for delinquent alimony. She argues that the basis of alimony is the natural obligation of a husband to support his wife; that it is not a debt within the meaning of exemption statutes; that it does not create a debtor-creditor relationship between husband and wife; and therefore it is beyond the purpose and scope of exemption statutes whose purpose is to save the debtor a means of supporting his family. She points out that other courts have generally so held, citing Anno: Enforcement of claim for alimony etc. against exemptions, 54 A.L.R.2d 1422; Bruton v. Tearle (1936), 7 Cal.2d 48, 59 P.2d 953; Yager v. Yager (1936), 7 Cal.2d 213, 60 P.2d 422; Rankins v. Rankins (1942), 52 Cal.App.2d 231, 126 P.2d 125; Ex parte Smallbone (1940), 16 Cal.2d 532, 106 P.2d 873; Henry v. Henry (1960), 182 Cal.App.2d 707, 6 Cal.Rptr. 418; Bickel v. Bickel (1972), 17 Ariz.App. 29, 495 P.2d 154.
She goes on to argue that the monthly expenses listed by respondent as necessary for the support of his family deserve scrutiny to determine their necessity within the meaning of Montana's exemption statute. Finally, she points out that the result of upholding respondent's claim of exemption is to favor second and third wives and children at the expense of her prior claim-an indefensible social policy.
The issue posed in this case has not been adjudicated in Montana. Both appellant and respondent concede this. Appellant seeks to persuade us to hold in her favor by rulings of courts of sister states either that their exemption statutes do not expressly encompass claims or judgments for delinquent alimony or by judicial interpretation or construction of their exemption statutes to that effect.
We remain unpersuaded. We recognize that alimony claims rest on a different basis than ordinary debts. The United States Supreme Court has pointed out this difference in this language:
"Permanent alimony is regarded rather as a portion of the husband's estate to which the wife is equitably entitled, than strictly a debt; alimony from time to time may be regarded as a portion of his current income or earnings." Audubon v. Shufeldt (1901), 181 U.S. 575, 578, 21 S.Ct. 735, 736, 45 L.Ed. 1009.
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