Summary
In Roach, the Ohio Supreme Court stated, "In order to have a judgment lien, there must be a final judgment for the payment of a definite and certain amount of money which may be collected by execution on property of the judgment debtor."
Summary of this case from Farmers State Bank v. SponaugleOpinion
No. 34427
Decided February 29, 1956.
Appeal — Final order — Sustaining motion to quash execution of judgment — Divorce and alimony — Order for support, payable in installments — Continuing jurisdiction retained — Not subject to execution before reduced to lump-sum judgment.
1. The sustaining of a motion to quash execution of a judgment is a final appealable order.
2. Where a court in a divorce action makes an order for the support of a minor child of the parties, payable in installments, over which order the court retains expressly or by implication continuing jurisdiction, such order must be reduced to a lump-sum judgment as to unpaid and delinquent installments before an execution may be lawfully levied thereunder.
APPEAL from the Court of Appeals for Cuyahoga County.
An action for divorce was instituted in the Common Pleas Court of Cuyahoga County on April 12, 1938, wherein the appellee herein, Ruth M. Roach, is plaintiff, and the appellant herein, Harry J. Roach, is defendant. Plaintiff was awarded a divorce and the custody of a minor child of the parties, subject to the provisions of a separation agreement between them which was approved and confirmed by the court and made a part of the divorce decree.
Important in the present controversy is the fact that the court ordered the defendant to pay to the plaintiff the sum of $15 per week for the support of the minor child, beginning on June 16, 1938, such payments to continue until the child arrived at legal age, subject to the further order of the court. Thereafter, on November 6, 1941, on motion to modify the original decree, the court increased the amount of the support payments to $20 per week commencing on October 18, 1941. Subsequently, on February 7, 1942, on motion to modify the decree, the court authorized the plaintiff to domicile the minor child at her home at Olean, New York, and reduced the weekly support payments to $12 per week, commencing on January 17, 1942. No subsequent modification regarding the support payments was made by the court or requested by the plaintiff.
Without any further order or lump-sum judgment by the court, the plaintiff caused to be issued three separate foreign executions, hereinafter referred to in the singular, dated September 11, 1952, June 15, 1953, and July 27, 1953, and addressed to the sheriff of Allen County, Ohio, resulting in a levy upon the lands and goods of the defendant, located in that county, and purporting to be based on a judgment against the defendant in the amount of $6,199, claimed to represent the past due, delinquent and unpaid weekly support payments ordered by the court.
On August 21, 1953, the defendant filed a motion to expunge, strike from, and withdraw from the record the foreign execution addressed to the sheriff of Allen County, on the ground that there were no judgments of record supporting the issuance of such execution.
On September 16, 1953, a hearing was had on the motion to strike from the record the above-described execution. Evidence was introduced by defendant showing that the plaintiff had filed a petition in the Common Pleas Court of Allen County alleging that a judgment for $6,199 had been secured by the plaintiff in the Common Pleas Court of Cuyahoga County. Evidence was also offered showing the issuance of the foreign execution by the clerk of courts of Cuyahoga County.
The court sustained defendant's motion to strike from the files the foreign execution in question, finding "that the last orders of the court for weekly payments for the support of the child of the parties hereto were made on February 7, 1942, and June 14, 1943, and were subject to certain conditions and limitations and that no judgments for damages or money were recovered by the plaintiff at the September 1952 or May 1938 terms of this court, as stated in the alleged executions, * * * and that all of the foregoing alleged executions were void and of no effect."
Thereafter the plaintiff appealed on questions of law from such order to the Court of Appeals for Cuyahoga County, which court, without written opinion, reversed the order of the Court of Common Pleas, rendered final judgment for the plaintiff and remanded the cause to that court with instructions to vacate the entry of judgment expunging the record.
Defendant filed a motion in this court to certify the record. The allowance of that motion brings the cause to this court for review.
Mr. Jack B. Dworken and Mr. Morton R. Dworken, for appellee.
Mr. Donald M. Marshman and Mr. Howard Everett, for appellant.
The first question raised by the defendant relates to his contention that the Court of Appeals had no power to review the order appealed from, for the reason that it is not a final order but a mere correction of the record. On the other hand, the plaintiff claims that the striking of the foreign execution is a final order in that it destroyed a valuable lien right which plaintiff had secured on defendant's Allen County property.
Attachment is a process somewhat similar to that of execution, the function of both being to aid a creditor in sequestering the property of his debtor. This court and courts generally have held that an order overruling a motion to dissolve an attachment or an order discharging an attachment is an order affecting a substantial right and is, therefore, a final order reviewable on appeal. Pilgrim Distributing Corp. v. Galsworthy, Inc., 148 Ohio St. 567, 76 N.E.2d 382; Hamilton v. Temple, 60 Ohio App. 94, 19 N.E.2d 650. And the Courts of Appeals of this state have held that an order of a trial court refusing to quash an execution ( C.E. McCune Co. v. Warndorf, 55 Ohio App. 279, 9 N.E.2d 709) and an order staying the execution of a judgment ( Jolley v. Martin Bros. Box Co., 59 Ohio Law Abs., 314, 99 N.E.2d 675) are final orders.
The general rule is that, if an order divests a party of the right to have the court making the order place him in his original position, such order is final and appealable. If, in the instant case, the plaintiff had a requisite judgment upon which a foreign execution issued, resulting in a levy, upon Allen County real estate of the defendant, the quashing of such execution took away that lien right and constituted a final appealable order. When the execution was quashed, all rights based thereon and any title to the property vested in the sheriff by the levy or even the right to enforce the judgment against the particular property was destroyed. Parker v. Howe, 114 Cal.App. 166, 299 P. 553; Hulse v. Davis, 200 Cal. 316, 253 P. 136. However, the quashing of the writ does not affect the judgment on which it was issued.
Under the circumstances of this case, conceding for the moment the requisiteness of the judgment, we are of the opinion that the quashing of the writ of execution, whereby the execution lien was destroyed, is a final appealable order.
The most important question raised by the defendant is whether, where a court in a divorce action makes an order for the support of a minor child of the parties, payable in installments, over which order the court retains expressly or by implication continuing jurisdiction, such order must be reduced to a lump-sum judgment as to unpaid and delinquent installments before an execution may be lawfully levied thereunder.
This court has held that an order to pay installments for alimony or support of minor children, incorporated in a decree of divorce, is a "judgment" for the amount of the installments which are accrued and due, within the definition of that term as contained in Section 11582, General Code (Section 2323.01, Revised Code). Armstrong v. Armstrong, 117 Ohio St. 558, 160 N.E. 34, 57 A.L.R., 1113; McPherson v. McPherson, 153 Ohio St. 82, 90 N.E.2d 675.
But the specific question here is whether the decree in the instant case for installment payments for support is a judgment upon which an execution may issue. The authority for the issuance of a writ of execution is set out in Section 11664, General Code (Section 2329.09, Revised Code), the pertinent part of which is as follows:
"The writ of execution against the property of a judgment debtor issuing from a court of record, shall command the officer to whom it is directed, that of the goods and chattels of the debtor he cause to be made the money specified in the writ * * *. The exact amount of the debt, damages and costs, for which the judgment is entered, shall be indorsed on the execution." (Italics supplied.)
The provisions of an execution statute must be strictly construed and followed, and a decree for the payment of money in installments, as differentiated from a lump-sum decree or judgment, requires a factual finding as to the amount still due or owing or at least a mathematical calculation of the amount due at any particular time.
This court has not heretofore passed upon this exact question. There is some confusion in the holdings of the lower courts in this state on the subject. One Court of Appeals has held that an execution may be levied for past due installments without first carrying into a separate formal legal judgment the total amount of the installments then due under the decree. Bush v. Bush, 82 Ohio App. 255, 75 N.E.2d 832. In other cases cited in support of this position were lump-sum orders as in Conrad v. Everich, 50 Ohio St. 476, 35 N.E. 58, 40 Am. St. Rep., 679; and Coffman, Admr., v. Finney, Admr., 65 Ohio St. 61, 61 N.E. 155, 55 L.R.A., 794.
On the other hand, there are several Court of Appeals cases which hold that the court may not issue execution on such an installment decree without first reducing the decree to a lump-sum judgment. See Collins v. Collins, 79 Ohio App. 329, 73 N.E.2d 814; Knight v. Knight, 70 Ohio Law Abs., 271, 114 N.E.2d 616. In the Collins case the court held:
"2. Before such an order for support may be reduced to a money judgment after term, the order must be modified so as to reduce it to an order for the payment of a lump sum."
In the course of the opinion in Ellis v. Ellis, 94 Ohio App. 339, 115 N.E.2d 180, the court said:
"* * * it would seem to follow that where a divorce judgment contains provisions with respect to property rights in futuro or of an executory nature, the court entering the judgment would likewise have continuing jurisdiction, impliedly reserved, to enforce or implement the rights secured by such provisions. * * *
"Although the jurisdictional question is not free from doubt, we reach the conclusion that upon an appropriate application and evidence in support thereof, a court which at a prior term has entered a divorce judgment has jurisdiction to enter a judgment ancillary in nature to enforce compliance with the terms of the original judgment."
In the case of Knight v. Knight, supra, the court said that accrued installments under support and maintenance provisions of a divorce decree may be reduced to judgment in a jurisdiction foreign to that in which the divorce was granted, where nothing is required beyond proof of a final order for the payment of money, plus a mathematical calculation of the amount due.
It is a general rule that there must be a specification in the judgment of the amount to be recovered before execution can issue thereon. Bank of America National Trust Savings Assn. v. Standard Oil Co. of California, 10 Cal.2d 90, 73 P.2d 903. In order to have a judgment lien, there must be a final judgment for the payment of a definite and certain amount of money which may be collected by execution on property of the judgment debtor. A judgment for periodic installments for an indefinite time can not create a lien on real property, in the absence of a provision in the judgment itself for a lien. Olin v. Hungerford, 10 Ohio, 268; Yager v. Yager (periodic payments of alimony), 7 Cal.2d 213, 60 P.2d 422, 106 A.L.R., 664; Bird, Exrx., v. Murphy, 82 Cal.App. 691, 256 P. 258; (certiorari denied, 275 U.S. 487, 72 L. Ed., 387, 48 S. Ct., 38), see annotation, 79 A.L.R., 252.
It follows that if a judgment is so indefinite as to its amount that it can not create a lien on real property within the jurisdiction of the court granting it, no execution may be issued thereon which will create a lien on real estate in a foreign jurisdiction.
This court is of the opinion that there is here no requisite judgment upon which execution can properly issue.
The judgment of the Court of Appeals is reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART and BELL, JJ., concur.
The decision being rendered in the instant case is directly contrary to the decision rendered by this court in 1839 in Piatt v. Piatt, 9 Ohio, 37. In that case, there was a motion to set aside a sale and execution based upon a decree ordering a husband to pay as alimony $150 by a certain date and $75 every three months thereafter during the joint lives of the husband and wife. In the court's opinion by Wood, J., at page 41, it is stated:
"The first objection raised * * * is * * * an objection to the confirmation of sale, viz., that the execution issued for too large a sum. One hundred and fifty dollars was decreed to be paid on the 1st of September, and $75 every three months thereafter. As these distinct sums fall due at different periods, it is urged that a separate execution ought to issue for each. We think execution might issue upon each installment as it became due; but as the decree is an entire thing, though to be performed by the payment of periodical installments, if the complainant sees fit to wait until a number of these installments fall due, we see no substantial reason against including whatever may be due at the time of issuing the writ in the same execution."
The motion was overruled and the sale was confirmed.
For over 124 years and until the decision of the Common Pleas Court in the instant case (67 Ohio Law Abs., 162, 116 N.E.2d 46), that decision of this court on the question of law involved in the instant case was noticed by Ohio courts only with approval. Thus, it was followed by the Circuit Court for Hamilton County in 1909 in Embshoff v. Embshoff, 12 C.C. (N.S.), 236, 21 C.D., 589, by the Common Pleas Court of that county in 1913 in Breen v. Breen, 14 N.P. (N.S.), 219, and by the Court of Appeals for Franklin County in 1947 in Bush v. Bush, 82 Ohio App. 255, 75 N.E.2d 832. Furthermore, it apparently represents the general law outside Ohio. Thus in 27 Corpus Juris Secundum, 1061, Section 265, it is said:
"Where payment of permanent alimony is to be made in installments, execution may issue to enforce payment of each installment as it falls due, or of so many of them as may be due at any one time * * *."
This question of law was not even considered in either Knight v. Knight, 70 Ohio Law Abs., 271, 114 N.E.2d 616, or Ellis v. Ellis, 94 Ohio App. 339, 115 N.E.2d 180. As to Collins v. Collins, 79 Ohio App. 329, 73 N.E.2d 814, the decision of the Court of Appeals in McPherson v. McPherson, 153 Ohio St. 82, 90 N.E.2d 675, had been certified to this court as in conflict with the Collins case. The syllabus and decision of affirmance by this court in the McPherson case are entirely inconsistent with the decision of the Court of Appeals in the Collins case. If this court's decision had been in accordance with the decision of the Court of Appeals in the Collins case, then it might be doubtful whether a decree for payment of alimony in installments should now be regarded as a judgment upon which execution could be issued. However, in view of the decision of this court in McPherson v. McPherson, supra, such a decree can be and for some purposes must be regarded as a judgment. Compare Griffin v. Griffin, 327 U.S. 220, 90 L. Ed., 635, 66 S. Ct., 556, with Sistare v. Sistare, 218 U.S. 1, 54 L. Ed., 905, 30 S. Ct., 682, 28 L.R.A. (N.S.), 1068, 20 Ann. Cas., 1061.
Olin v. Hungerford, 10 Ohio, 268, cited in the majority opinion, was a holding that, where there was a decree for alimony to be paid in installments, such decree did not operate so as to impose upon land owned by the husband at the time of the decree a lien for an installment of alimony which became due several years after the husband had conveyed away such real estate. Although the soundness of that decision was subsequently questioned by this court ( Conrad v. Everich, 50 Ohio St. 476, 478, 479, 35 N.E. 58, 40 Am. St. Rep., 679), it is not inconsistent with the decision or with the reasons given for the decision of the Piatt case. On the conveyance of the real estate involved in the Olin case, the amounts of installments not then due under the alimony decree would certainly not even be included within "the amount of the judgment that was ripe for execution" at that time. See Monaghan v. Monaghan, 25 Ohio St. 325.