AGLO 1972 No. 6 - Jan 25 1972
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January 25, 1972
Honorable Lincoln E. Shropshire
Yakima County Court House
Yakima, Washington 98901 Cite as: AGLO 1972 No. 6 (not official)
By recent letter you have requested an opinion of this office on the following question:
"When a wife is awarded support and attorney's fees on an Order on Show Cause pursuant to RCW 26.08.090, is it proper for the Clerk of the Superior Court to, prior to entry of the Decree of Divorce issue either a Writ of Execution or a Writ of Garnishment to satisfy the obligations set forth in the prior Order on Show Cause?"
We answer this question in the affirmative for the reasons set forth below.
RCW 26.08.090 provides, in pertinent part, that:
"Pending an action for divorce or annulment the court may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as the court may deem right and proper, and such orders relative to the expenses of such action, including attorneys' fees, as will insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. . . ." (Emphasis supplied.)
Based upon a telephone conversation had with you since receiving your letter, it is our understanding that the issue you seek to resolve is whether the express reference to attachment in this statutory provision by implication excludes any utilization of either execution or garnishment to enforce such orders as are referred to [[Orig. Op. Page 2]] therein. Accord, the well-established principle of statutory construction that the express inclusion of one item in a statute constitutes an implied exclusion of all other similar items. Bradley v. Dept. Labor & Ind., 52 Wn.2d 780, 329 P.2d 196 (1958).
We do not believe this rule of construction to be dispositive of your question, however. Instead, our review of certain decided cases (in the case of execution) and the current garnishment statute (in the case of that remedy) leads us to conclude that where an order entered under RCW 26.08.090 has given rise to a definite accrued money obligation, either of these enforcement remedies is available.
(a) Writs of Execution
We begin by focusing on the propriety of issuing writs of execution prior to entry of the final decree of divorce. Two cases in particular incline us to view that such writs may be utilized to enforce both preliminary support and suit money orders. The first of these is State ex rel. Surry v. Superior Court, 74 Wash. 689, 134 Pac. 178 (1913). At the time of the proceedings in this case, the statute in force (§ 4, chapter 26, Laws of 1891) read essentially as it does today ‑ as follows:
"Pending the action for divorce the court or judge thereof may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper, and such orders relative to the expenses of such action as will insure to the wife an efficient preparation of her case, and a fair and impartial trial thereof; and on decreeing or refusing to decree a divorce, the court may, in its discretion, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the action when such divorce has been granted or refused, and give judgment therefor." (Emphasis supplied.)
In deciding, as a question of first impression, that a preliminary order for support was final and appealable, the court in Surry quoted the following language from an Illinois case (Blake v. Blake, 80 Ill. 523):
[[Orig. Op. Page 3]]
"'It is a money decree, is for a specific sum, and is payable absolutely. No execution has been as yet awarded, but the court has the undoubted authority to award an execution, or if payment was wilfully and contumaciously refused, the decree might be enforced by attachment, as for contempt, or payment might be coerced by sequestration of real or personal estate. . . . It is apprehended there can be no decree against a party, that will work a deprivation of his property or liberty, from which no appeal or writ of error will lie. Such is the decree against the defendant. Under it he may be deprived of his liberty, or his property subjected to levy and sale.'"
The court then said of this Illinois decision that
"The case seems so sound in principle and the reasoning is so convincing that there is little left to be said. . . ." (74 Wash. 692.)
To be sure, the court in Surry was not addressing itself to the authority of a divorce court to enforce its preliminary orders by methods other than attachment. We think, however, that the reaffirmation of the foregoing language in State ex rel. Taylor v. Superior Court, 151 Wash. 568, 276 Pac. 866 (1929), further supports the conclusion we reach herein.
In this case, the question was whether a preliminary support order, issued prior to entry of a decree of divorce, could be enforced by execution after entry of the divorce decree but during the pendency of an appeal from the decree of divorce. In answering that question affirmatively, the court said, significantly:
"Under this statute, this court has repeatedly held that an order made pursuant to the foregoing statutory provisions is, to all intents and purposes, final and appealable as a final judgment within such time as other final judgments in civil actions are appealable, and are not within such limit as interlocutory orders in other respects are appealable, to wit:
[[Orig. Op. Page 4]]
fifteen days. State ex rel. Surry v. Superior Court, 74 Wash. 689, 134 Pac. 178; Dilatush v. Dilatush, 102 Wash. 504, 173 Pac. 431; Yoder v. Yoder, 105 Wash. 491, 178 Pac. 474, 3 A.L.R. 1104.
"Relator seems to assume that, because the order in question was not denominated a judgment and contained no provision for execution to issue, no execution can issue thereon until an order or judgment is procured ordering execution.
"Since we have held that such an order for the payment of money pending appeal is a final order, appealable in the same way as a final judgment, and the order in question is definite and certain as to the amount adjudged to be paid by Charles L. Taylor, it is as much a final judgment as could be contemplated under our statute.
"We so held in the Surry case, supra. In that case we also quoted with approval cases from other states to the effect that such final judgment could be enforced by execution as well as by personal attachment. We there approved a quotation from an Illinois case (Blake v. Blake, 80 Ill. 523) saying:
"'It is a money decree, is for a specific sum, and is payable absolutely. No execution has been as yet awarded, but the court has the undoubted authority to award an execution, . . .'
"Although it is quite common for judgments to include some such order as that 'whereof execution shall issue, etc.', no such thing is necessary in a judgment for the payment of money only.
". . .
"Section 512, id., directs:
[[Orig. Op. Page 5]]
"'When a judgment requires the payment of money, . . . the same may be enforced . . . by execution, as provided in this chapter.'
"Section 513, id., prescribes the form and contents of four forms of execution. While it is true that an execution may not issue unless there is a judgment or decree as a basis for it (23 C.J. 314), there is in this case what we have held is such judgment." (Emphasis supplied.)
The point of these two cases, as we see it, is simply that the court looked upon the remedy of execution as an integral adjunct of the enforcement of a money judgment by attachment. In other words, it appears to have viewed the phrase "by attachment enforce" as authorizing not merely the act of attaching (i.e., sequestering) the property of the husband but that of executing against that property, through sale or otherwise, as well.
(b) Writs of Garnishment
We are furthermore of the opinion that a writ of garnishment to enforce a support or suit cost order under RCW 26.08.090 may issue as well. Keeping in mind our court's characterization of preliminary support orders as final judgments in Surry and Taylor, supra, we turn to RCW 7.33.010, which reads (in material part) as follows:
"(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:
"(a) Where an original attachment has been issued in accordance with the statutes in relation to attachments.
"(b) Where the plaintiff sues for a debt and the plaintiff or someone in his behalf makes affidavit that such debt is just, due and unpaid, and that the garnishment applied for is not sued out to injure either the defendant or the garnishee.
[[Orig. Op. Page 6]]
"(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.
". . ."
If there has been an attachment during the proceedings, then, quite clearly, a writ of garnishment may issue by virtue of subsection (1) (a), supra. Moreover, even where there has not been such an attachment we think that the foregoing cases ‑ establishing as they do that the orders entered under RCW 28.08.090 are both appealable and enforceable as final judgments ‑ indicate that a writ of garnishment may issue pursuant to subsection (1) (c) of this garnishment statute. Thus, where the accrued obligations under such orders are definite and certain, a writ of garnishment may issue prior to entry of a final decree of divorce to enforce them.
We trust the foregoing has been of assistance to you.
Very truly yours,
FOR THE ATTORNEY GENERAL
Thomas F. Carr
Assistant Attorney General