Uhrick v. Uhrick

Garrard, J.

The parties to this appeal were formerly husband and wife. In 1969 they were divorced and the wife was *134awarded an alimony judgment of $40,500 payable in 122 consecutive monthly installments commencing in July 1969. No provision was made in the decree establishing the alimony award as a lien on husband’s real estate despite the existence at that time of IC 1971, 31-1-12-17, which provided,

“Said'judgment . . . shall not be such a lien to the extent that it is payable in the future unless and to the extent such decree so provides expressly.”

Wife commenced the present action in 1975 seeking to have the unpaid-balance of the alimony award declared a lien on husband’s real estate. It is her contention that when IC 1971, 31-1-12-17 was repealed in 1973 by the dissolution of marriage act, IC 1971, 31-1-11.5-1. et seq., the general statute relating to judgment liens entitled her to her request. From the evidence the trial court discovered there was no amount due and owing by the husband at the time, although payments would become due in the future. On this basis it found the wife was not entitled to a lien for the unpaid balance and entered judgment for the husband. -

IC 1971, 34-1-45-2 provides:

“All final judgments for the recovery of money or costs in-the circuit court and other courts of record of general original jurisdiction sitting in the state of Indiana, whether state or federal, shall be. a lien upon real estate and chattels real liable to execution in the county where, and only where, such judgment has been duly entered and indexed in the judgment docket as provided by law, from and after the time the same shall" have been so entered and indexed, and until the expiration of ten [10] years from the rendition thereof, and no longer, exclusive of the time during which the party may be restrained from proceeding thereon by any appeal or injunction or by the death of the defendant, ..or.by agreement of the parties entered of record.”

Wife’s argument fatally misconceives the general law applicable to such, statutes.

A judgment lien is purely statutory in Indiana. See, e.g., In re Webb (1958), 160 F. Supp. 544; Taylor v. McGrew (1902), 29 Ind. App. 324, 64 N.E. 651.

*135For a money judgment to constitute a;.lien, under such; a statute, it must ordinarily 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. See, 49 C.J.S., Judgments, Section 458; 46 Am. Jur. 2d, Judgments, Section 242; 17 I.L.E. Judgments, Section 462; Anno: 59 A.L.R. 2d 656.

Thus, while based primarily upon the Court’s power for future modification, our decisions have recognized that an award for child support in futuro as part of a divorce decree does not create a lien under the statute, Myler v. Myler (1965), 137 Ind. App. 605, 210 N.E.2d 446.

While the alimony judgment in question was for a gróss sum, it was not then due and payable and subject to execution.1 Cf. Owens v. Owens (1976), 170 Ind. App. 566, 354 N.E.2d 350. It therefore did not create a judgment lien under IC 1971, 34-1-45-2.

IC 1971, 31-1-12-17 provided an additional judgment lien for alimony judgment payable in the future if the divorce decree expressly so provided. The repeal of that section could not therefore create a lien not otherwise provided by statute.2 The trial court ruled correctly.

Affirmed.

Hoffman, J., concurs; Staton, P.J., dissents and files .separate opinion. ......

. Had there been payments due and owing so as to' entitle the wife to execution, a different question would be presented.. Also compare,, e.p., the probate code, IC 1971, 29-1-14-3, which permits the court in decedent’s estates to determine the present value of a claim which will " become- due in the future.

. We do not here consider whether such a lien may be expressly .created under the Marriage Dissolution Act.