Opinion
No. 37960
Decided August 30, 1967.
Debtor and creditor — Installments due for support of minor — Reduced to lump sum and execution awarded — Divorce and alimony action — Court without implied power to establish trust fund to secure payment — Descent and distribution — Money in hands of executor due heir — Execution or attachment by heir's creditor — Creditor's bill.
1. Arrearages in the payment of installments for the support and maintenance of the minor children of the parties to a divorce action ordered paid by the husband to the wife may be reduced on motion to a lump sum judgment and execution awarded.
2. After an order of distribution has been made, money in the hands of an executor or administrator of an estate due and payable to an heir or legatee is subject to execution or attachment by a judgment creditor of such heir or legatee, in the manner provided by law.
3. The interest of a judgment debtor as an heir or legatee of funds in the hands of an executor or administrator of an estate may be reached by a judgment creditor of such heir or legatee by a creditor's bill, filed during the administration of such estate before an order of distribution has been made.
4. A court has no implied power to establish a trust fund out of property belonging to a party in a divorce action to insure future payments for the support and maintenance of the minor children of the parties subsequent to the granting of a decree of divorce containing an order fixing alimony, division of property, and custody, maintenance and support of said minor children.
Messrs. Sani Barnhouse, for plaintiff.
Mr. Socrates J. Space, for defendant.
The plaintiff in this case was granted a decree of divorce from the defendant on May 9, 1966, under which alimony, division of property and payment of debts was fully determined. She was awarded the custody of the youngest three children of the parties. The defendant was ordered to pay the plaintiff the sum of $30.00 per month each for the support and maintenance of said children to continue until each of said children should arrive at the age of 21 years, becomes self-supporting, marries or until further order of the court. The children are now of the ages 7, 5 and 2 years respectively.
Since March 1, 1967, the defendant is in arrears in support payments for said children in the total sum of $370.00.
The estate of the mother of the defendant is in the process of administration in the Probate Court of this county and under her will the defendant will share equally with six brothers and sisters in her estate on final distribution.
The plaintiff has filed a motion in this court in which she prays (1) for an order of the court reducing the arrearages in support payments in the sum of $370.00 to a lump sum judgment and for an order directing the executor of said estate to pay said arrearages direct to the plaintff, and (2) for an order on the executors of the defendant's mother's estate to pay an amount from the share of the defendant in his mother's estate, on final distribution, as the court shall determine, into a trust fund to provide and insure future payments for the maintenance and support of the minor children of the parties.
It is provided in Section 3105.20, Revised Code, that "In any matter concerning domestic relations, the court shall not be deemed to be deprived of its full equity powers and jurisdiction." The plaintiff relies on this provision to support her contention for direct payment and that a trust fund be established.
Under the aforesaid provision of Section 3105.20, Revised Code, the Supreme Court has held that "full equity powers and jurisdiction" extends to orders made for the disposition, care, maintenance and support of minor children. See Robrock v. Robrock, 167 Ohio St. 479.
The courts of Ohio recognize various ways in which installment orders for the support of minors ordered in a divorce action may be enforced among which are:
1. By proceedings in contempt of court. (See Bly v. Smith, 94 Ohio St. 110.)
2. By reducing defaulted installments to a lump sum judgment and issuing execution thereon. (See Aukland v. Aukland, 136 Ohio St. 396. )
3. By bringing an independent suit for past support and maintenance of a child. (See McDaniel v. Rucker, 150 Ohio St. 261. )
There is no question concerning the plaintiff's right to a lump sum judgment for defaulted payments in the sum of $370.00. However, this court under the plaintiff's motion has no authority to order the executors of the estate of the defendant's mother to honor said judgment by direct payment to her. Execution may be issued on such a judgment. The defendant's interest in said estate to satisfy said judgment could also be reached by proceedings in aid of execution under Section 2333.01, Revised Code, or by a creditor's bill, but not by motion in the divorce action.
Property in the hands of an executor or administrator of an estate cannot be attached by the creditor of an heir, legatee or creditor of the estate before an order of distribution has been made for the reason that so long as the estate remains unsettled the property does not vest in or belong to the heir or legatee. See 23 Ohio Jurisprudence 2d page 157, Section 599.
But after an order of distribution has been made, money in the hands of executor or administrator of an estate due and payable to an heir or legatee on an order of distribution is "money due" from a "person" to the legatee and is not exempt from execution. See Section 2329.81, Revised Code; Loan Co. v. Guthridge, 61 Ohio App. 202.
The interest of a judgment debtor as legatee or heir in funds or property in the hands of an executor or administrator of an estate may be reached by a creditor's bill or suit filed during the administration of an estate before an order of distribution is made. See Union Properties, Inc., v. Patterson, 143 Ohio St. 192.
Does the court under said motion have jurisdiction to establish a trust out of the defendant's interest in his mother's estate to secure payments for the future support of the minor children of the parties, either as a fund from which the amounts decreed may be paid or as a hold on specific property. Courts throughout the United States are not in accord on this question. See 3 A. L. R. 3d 1170.
In some states there is express statutory authority for the establishment of a trust to secure future payments of alimony or child support awards. New York statutes specifically authorize sequestration of property and receiverships to enforce payment of alimony and support money. See N.Y. Civil Practice Act, Section 1171. Michigan has a somewhat similar provision. See Michigan Statutes, Amo. Section 25.105. Ohio has no such statute.
In the absence of express statutory authority some other states have held that a court granting a divorce has no authority to fasten a trust on property of the parties to secure future payments of alimony or amounts decreed for child support.
Some states have held that a court has power to establish a trust to secure the payment of alimony or child support payments as part of a decree granting a divorce based upon an inference from statutes giving a divorce court broad authority to make a proper disposition of the property and parties before it.
Under amended Section 3105.20, Revised Code, which has been held to give a trial court full equity power and jurisdiction, in a divorce case, a court is authorized to divide the property of the parties. See Clark v. Clark, 165 Ohio St. 457.
Under Section 3105.21, Revised Code, a court in a divorce or alimony action is authorized to make such order for the disposition, care, and maintenance of the children of the marriage as is just.
It has been held in Ohio that money may be ordered paid to a named trustee for the purpose of making proper disbursement for the support and maintenance of children in a divorce action. See Breisach v. Breisach, 37 Ohio App. 34.
It may be that under the provisions of Sections 3105.20 and 3105.21, Revised Code, a court in its decree of divorce may have implied power to establish a trust fund to insure future payments for the support and maintenance of the minor children of the parties in a divorce action in the amounts decreed, but this court is of the opinion that if a court has such power, the establishment of such a trust must be incorporated in the divorce decree and not in a subsequent proceeding. A court has control of the division of the property of the parties at the time of divorce decree and not thereafter. The court has reviewed the cases cited in 3 A.L.R.3d 1170 and in nearly every case, if not in all, the trust was established in the divorce decree and not thereafter.
In re Estate of Littauer, 285 App. Div. 95, 135 N.Y.S.2d 585, it was held that a divorced wife was not entitled to an order directing the trustee of a trust of which the former husband was a beneficiary to make payments for support of a child directly to her, although she was entitled to obtain judgment for past installments and to reach the income of trust by sequestration proceedings provided by statute.
It will therefore be held that the plaintiff be awarded a lump sum judgment in the sum of $370.00 against the defendant for which execution is awarded but for the reasons herein set forth the other relief prayed for is denied.
Judgment accordingly.