AGO 1979 No. 5 - Mar 21 1979
COURTS ‑- JUDGMENTS ‑- GARNISHMENT ‑- EXECUTION ‑- DIVORCE AND DISSOLUTION ‑- STATUS OF ORDERS FOR THE PAYMENT OF MAINTENANCE OR CHILD SUPPORT
(1) Where a court, in conjunction with marriage dissolution proceedings, either by way of a temporary order or as a part of the final decree of dissolution itself, awards future payments of maintenance or child support, that order constitutes a judgment to be entered in the county clerk's execution docket pursuant to RCW 4.64.080.
(2) Such an order or decree also constitutes a "judgment" which would support a petition for a writ of garnishment pursuant to RCW 7.33.010(1)(c).
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March 21, 1979
Honorable Henry R. Dunn
Hall of Justice
312 South First Avenue West
Kelso, Washington 98626
Cite as: AGO 1979 No. 5
By letter previously acknowledged you requested the opinion of this office upon two questions which we paraphrase as follows:
(1) Where a court, in conjunction with marriage dissolution proceedings, either by way of a temporary order or as part of the final decree of dissolution itself, awards future payments of maintenance or child support, does that order, by itself, constitute a judgment to be entered in the county clerk's execution docket pursuant to RCW 4.64.080?
[[Orig. Op. Page 2]]
(2) Does such an order or decree constitute a "judgment" which would support a petition for a writ of garnishment pursuant to RCW 7.33.010(1)(c)?
We answer both of these questions in the affirmative for the reasons set forth in our analysis.1/
RCW 4.64.060 provides that:
"Every clerk shall keep in his office a record, to be called the execution docket, which shall be a public record and open during the usual business hours to all persons desirous of inspecting it."
The entries to be made in such docket are generally dictated by RCW 4.64.080 which reads as follows:
"He [the clerk]shall leave space on the same page, if practicable, with each case, in which he shall enter, in the order in which they occur, all the proceedings subsequent to the judgment in said case until its final satisfaction, including the time when and to what county the execution is issued, and when returned, and the return or the substance thereof. When the execution is levied on personal property which is returned unsold, the entry shall be: 'levied (noting the date) on property not sold.' When any sheriff shall furnish the clerk with a copy of any levy upon real estate on any judgment the minutes of which are entered in his execution docket, the entry shall be: 'levied [[Orig. Op. Page 3]] upon real estate,' noting the date. When any execution issued to any other county is returned levied upon real estate in such county, the entry in the docket shall be, 'levied on real estate of . . . . . . , in . . . . . . , county,' noting the date, count and defendants whose estate is levied upon; and when the money is paid, or any part thereof, the amount and time when paid shall be entered; also, when a judgment is appealed, modified, discharged, or in any manner satisfied, the facts in respect thereto shall be entered. The parties interested may also assign or discharge such judgment on such execution docket. When the judgment is fully satisfied in any way, the clerk shall write the word 'satisfied,' in large letters across the face of the entry of such judgment." (Emphasis supplied)
Thus, it is to be seen that the execution docket is to be maintained so as to allow,inter alia, for entries subsequent to a judgment in satisfaction thereof. See also, RCW 4.64.020.
The case ofStarkey v. Starkey, 40 Wn.2d 307, 242 P.2d 1048 (1952) dealt with the attempted collection, through execution and other processes, of child support arrearages and a money balance due pursuant to a final decree of divorce. In ruling on that question the court said, at p. 314:
"These accrued and unpaid installments did not, of their own force and effect, become liens upon defendant's property, since the divorce decree did not so provide. The unpaid installments did, however, provide the basis for writs of garnishment, writs of attachments, and general executions. Swanson v. Graham, 27 Wn.2d 590, 597, 179 P.2d 288."
TheSwanson case thus cited is to the same effect with respect to installment payments for child support and alimony.2/ [[Orig. Op. Page 4]] And, since final dissolution decrees or judgments requiring installment payments of child support or maintenance are thus capable of being enforced by the various methods referred to in theStarkey case as to any unpaid and thus matured installments it follows that they should be entered upon the execution docket.
As for similar installment payment requirements contained in temporary orders we note that RCW 4.64.080, supra, requires entries of ". . . proceedings subsequent to the judgment. . . ." Also, CR 54(a) (which is stated to, in part, supersede RCW 4.64.010) reads as follows:
"(1)Judgment. A judgment is the final determination of the rights of the parties in the actionand includes any decree and order from which an appeal lies. A judgment shall be in writing and signed by the judge and filed forthwith as provided in Rule 58.
"(2)Order. Every direction of a court or judge, made or entered in writing, not included in a judgment, is denominated an order." (Emphasis supplied)
In Furgason v. Furgason, 1 Wn.App. 859, 860, 465 P.2d 187 (1970) we find this statement:
"Although an order for temporary support is a final judgment within the meaning of the law,State ex rel. Surry v. Superior Court, 74 Wash. 689, 134 P. 178 (1913);Yoder v. Yoder, 105 Wash. 491, 178 P. 474, 3 A.L.R. 1104 (1919), a final judgment is not necessarily the last one in an action. Allowances for temporary support are made pendente lite. The order granting them [[Orig. Op. Page 5]] necessarily becomes ineffective upon the termination of the action and the statutory remedies provided for the enforcement of those orders are no longer available."3/
From the foregoing it is to be concluded that temporary orders in dissolution proceedings may also be enforced as to unpaid obligations or installments in the same manner as those arising from the final order of judgment of dissolution. Thus, they should likewise be entered in the execution docket pursuant to RCW 4.64.080.
Your second question, repeated here for ease of reference, asks:
Does such an order or decree constitute a "judgment" which would support a petition for a writ of garnishment pursuant to RCW 7.33.010(1)(c)?
RCW 7.33.010(1)(c) provides that:
"(1) Except as is provided in subsection (2) of this section, the clerks of the superior courts in the various counties in the state may issue writs of garnishment returnable to their respective courts in the following cases:
". . .
"(c) Where the plaintiff has a judgment wholly or partially unsatisfied in the court from which he seeks to have a writ of garnishment issued.
". . ." (Emphasis supplied)
[[Orig. Op. Page 6]]
The foregoing discussion means that both temporary orders and final decrees or judgments in dissolution proceedings are judgments within the meaning of CR 54(a)(1). Consequently, they each should be considered to be judgments within the meaning of RCW 7.33.010(1)(c), supra, and capable of supporting issuance of a writ of garnishment.
In addition to the cases cited above regarding your first query, your attention is invited toBoudwin v. Boudwin, 159 Wash. 262, 292 Pac. 1017 (1930) wherein the court precisely so held with respect to accrued monthly installments of alimony and child support required by a final decree of divorce. Further, see RCW 7.33.280 which reads, in part, as follows:
"If the garnishee is an employer owing the defendant wages, salary, or other compensation for personal services, then for each week of such wages, salary or other compensation, the following amounts shall be exempt from garnishment: . . . PROVIDED FURTHER, That the foregoing exemptions shall not apply in the case of a garnishment for child support if (a) the garnishment is based on a judgment or other court order; (b) the amount stated on the writ does not exceed the amount of two months support payments; and (c) the following language is conspicuously added to the writ of garnishment: 'This garnishment is based on a judgment or court order for child support. Hold all funds you owe the defendant up to the amount stated above without regard to any statutory exemption'.
". . ."
This section, in instances where it applies, appears to anticipate garnishments lying upon requirements of other than final judgments.
We trust that the foregoing will be of some assistance to you.
Very truly yours,
ERNEST M. FURNIA
Assistant Attorney General
*** FOOTNOTES ***
1/Accordingly, consideration of a third question set forth in your letter which was premised on a negative answer to question (1) is rendered unnecessary.
2/Swanson v. Graham, supra, should also be viewed for the proposition that matured, unpaid installments for alimony, child support, and the like, do not constitute a statutory judgment lien on real property. To effect such a lien a judgment must be entered for a specific amount‑-although the court could in a decree fasten a lien upon certain real property to insure payment of the installments.
3/In addition to the cases cited in Swanson,supra, see State ex rel. Taylor v. Superior Court, 151 Wash. 568, 276 Pac. 866 (1929) regarding utilization of execution and the like in the enforcement of obligations arising from temporary orders in divorce cases.