Brieger v. Brieger

Fromme, J.,

dissenting: An undesirable amount of confusion and fiction has crept into the law of Kansas relating to alimony and child support judgments. I am able to see neither logic nor necessity for the holding expressed in our majority opinion and I register my dissent to the court’s syllabus 3. Our special concern for the children of broken homes has resulted in extending certain special protections to assure their support. This is understandable when necessary for their protection. But the courts have adequate authority to enforce payment of support by both attachment of the person and by impressing a specific lien on the real estate of the parties. Amounts due for unpaid support automatically result *763in a pérsonal judgment which is enforceable the same as any other judgment. (Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561.)

The majority opinion reaches out yet further and impresses an implied or fictional lien upon the real estate outside the county of residence when no similar lien would be applied in the case of any ordinary personal judgment. The court is applying a doctrine similar to Us pendens upon the filing of the divorce decree, yet the court does not give force to that portion of the law of Us pendens which says the doctrine does not operate as notice of subsequent facts or issues. This doctrine has no greater effect than to give notice of the rights of the parties as finally determined by the judgment and decree in the case. The doctrine does not operate as notice of subsequent facts or issues. (54 C. J. S. Lis Pendens, § 40.) Such notice is effective only while the action is pending and not after judgment. (Moorhead v. Guliford, 163 Kan. 730, 186 P. 2d 275; 54 C. J. S. Lis Pendens, § 28, § 36.)

A purchaser after notice takes the property subject only to rights determined by the judgment and decree of the court. In our present case when we apply the doctrine of Us pendens and look to the decree of divorce on file what does the purchaser see? He sees the property subject to any rights as determined and set out in the decree. Looking at the decree a purchaser reads of a divorce action which was determined and in which the wife receives custody of the children. The husband is directed to pay $60.00 monthly for support. There is a division of property by the court whereby the husband receives the property “free and clear of any claim of” the wife. This judgment speaks of the rights of the parties as of the date of rendition of the decree and a purchaser should not be required to go further.

A trial court has authority to make the award a specific lien upon the real estate set over to the husband. Such action has been upheld in cases covering an award of alimony. (Chapman v. Chapman, 184 Kan. 319, 336 P. 2d 407; Smith v. Smith, 186 Kan. 728, 352 P. 2d 1036.) When no such lien is decreed and none is shown in the decree of divorce the party interested in receiving support payments should be required to take steps to enforce the judgment for unpaid child support or she should be barred from pursuing the real property in the hands of a purchaser for value. To issue an execution upon the judgment is a simple procedure familiar to all lawyers. An execution issues out of the court in which the *764judgment is rendered. (K. S. A. 60-2202.) It is only there that the amount of unpaid support payments can be determined. The records in that court are more readily available to the public. Since we are committed to the fiction that a personal judgment automatically arises on nonpayment I would adhere to that portion of our decisions as interpreted by this court in Haynes v. Haynes, 168 Kan. 219, 212 P. 2d 312, but I would not extend it further.

G. S. 1949 60-3126 relating to liens on real estate provided:

“Judgments of courts of record of this state, and of courts of the United States rendered within this state, shall be liens on the real estate of the debtor within the county in which the judgment is rendered, from the first day of the term at which the judgment is rendered; but judgments by confession, and judgments rendered at the same term during which the action was commenced, shall bind such lands only from the day on which such judgment was rendered. An attested copy of the journal entry of any judgment, together with a statement of the costs taxed against the debtor in the case, may be filed in the office of the cleric of the district court of any county, and such judgment shall be a lien on the real estate of the debtor uHthin that county from the date of filing of such copy. The clerk shall enter such judgment on the appearance and judgment dockets in the same manner as if rendered in the court of which he is clerk. Executions shall be issued only from the court in which the judgment is rendered. (Emphasis supplied.)

The majority opinion does violence to the very purpose of this statute which in my opinion relates to all personal judgments, including those judgments which automatically result on nonpayment of child support. It requires an attested copy of the journal entry of any judgment be filed in the proper office of any other county before a lien is imposed upon the debtor’s real estate in any such other county. The lien begins “from the date of filing.” We cannot logically hold that a judgment for unpaid child support can be filed before such judgment has arisen or is entered.

The majority decision points to the filing of the original divorce decree and says this is the judgment for non-support arising by reason of failure to make payments which complies with G. S. 1949 60-3126 (now K. S. A. 60-2202). How can this be when the decree in the divorce action sets the property over to defendant free of any lien or claim of the wife? The fictional judgment for nonsupport did not arise until defendant failed to make a support payment. In this present case it was eight months after the date of the divorce decree. This fictional judgment then became merely a personal judgment and should enjoy no special privilege. The statute does not permit a filing before a judgment is obtained. It now appears *765we are indulging in a second fiction which will make for uncertainty and confusion in titles to all real estate of the parties to a divorce action. In the future when a party to a divorce action is directed to make monthly payments of support and alimony the other party will merely file the decree of divorce in all counties in which property is located and will thereby impress an automatic lien for any unpaid amounts against the land. If a payment is missed a personal judgment will automatically result in the county in which the divorce was granted, and this personal judgment under the present decision automatically becomes a lien upon real estate in any county of the state, provided the other party has had the foresight to file the decree of divorce in such county.

The future difficulties which will arise will be many for the fictional judgment automatically rendered in these cases does not appear on the records of any court. In order to determine the amount you must follow the record of payments received by the clerk and discover at your peril which payments have not been paid. You must also determine at your peril if all children are minors and still living. The payments stop when a child reaches his majority. The payments in some cases are made by the father direct to the mother or otherwise omitted from the court records.

I see no reason for further extending the special privileges enjoyed by this type of judgment since the trial court in the decree of divorce has the power to impress a lien upon the real estate to assure payment of these sums. When the trial court does so it will then appear in the decree of divorce and be apparent to any prospective purchaser. The logic of this is apparent in the present case for the certified decree of divorce was filed December 22, 1961 and Mrs. Brieger did nothing more to collect the judgment until a praecipe for execution was filed October 6, 1965. Between the filing of the certified decree and the request for execution this property has passed to two different purchasers for value. Matlock purchased the property in 1962 and sold to Hydom in February 1965. The majority feel these purchasers must take notice of the decree of divorce together with subsequent facts and issues arising after the date of the decree, and the burden of payment is thereby shifted from the father to purchasers for value. I do not agree.

I would therefore affirm the judgment of the trial court.

Schroeder, J., joins in the foregoing dissent.