Marriage of Jones v. Poindexter , 49 State Rptr. 501 ( 1992 )

NO. 91-394
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
IN RE THE MARRIAGE OF KENNETH JONES, Petitioner,
and
RITA ANN "GOBERT" JONES, Respondent,
-vs-
STEVEN G. POINDEXTER and INSURED TITLES, INC.,
a Montana corporation,
Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John S. Henson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John K. Tabaracci; Sullivan and Tabaracci, Missou
Montana
For Respondent:
Paul Neal Cooley; Skelton and Cooley, Missoula,
-
Montana
enneth Jones, Pro Se, Kamia, Idaho
-
.JUd 9 199 Submitted: April 21, 1992
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Steven Poindexter and Insured Titles, Inc., appeal an order of
the District Court for the Fourth Judicial District, Missoula
County, allowing Rita Ann ggGobertgg
Jones to execute judgment liens
on certain real property in Florence, Montana. The property was
sold to Poindexter by Kenneth Jones, Rita's former husband, and his
second wife and their daughters. We reverse.
We restate the issue as whether the order entered by the
District Court relates to property sold to Poindexter by Ken Jones
and is based on judgment liens existing when Poindexter purchased
the property.
Since the marriage of Rita and Ken Jones was dissolved in
January 1985, Ken has been held in contempt of court several times
for refusing to pay maintenance and child support. He unsuccess-
fully challenged the original property settlement. In re Marriage
of Jones (1987), 229 Mont. 128, 745 P.2d 350.
Ken purchased real property located in Florence, Montana, in
1986. In May 1987, he executed a declaration of homestead on the
property pursuant to g 70-32-105, MCA. In July 1987, he conveyed
the property by quitclaim deed to himself (1/2), his second wife
(1/6), and their two daughters (1/6 each), as tenants in common.
His second wife filed a declaration of homestead in January 1988.
Also in 1988, Ken filed for bankruptcy. As a result of that
filing, in July 1988 a dissolution decree property settlement
provision that he pay certain suns to Rita was redesignated as a
maintenance obligation. Ken unsuccessfully appealed a subsequent
order that he pay Rita maintenance and back child support. In re
Marriage of Jones (lggO), 242 Mont. 119, 788 P.2d 1351. While that
appeal was pending, on January 5, 1990, Ken and his second wife
(acting for herself and as guardian for their daughters) conveyed
their Florence, Montana property to Poindexter. Insured Titles
acted as the title company.
Rita states that she did not know of the sale of the Florence,
Montana property until after it occurred. She was able to execute
upon $15,735.53, or half, of the proceeds of the sale, which
Insured Titles withheld from Ken for the purpose of paying Rita's
past-due maintenance and child support. Execution on those
proceeds is not a subject of this appeal. This left $2,113.53 due
on the underlying judgment.
On July 11, 1990, Rita moved for an order of sale of the
Florence, Montana property so that she could recover the mainte-
nance remaining due her on the judgments upon which the earlier
execution was had and attorney fees she was awarded under a January
24, 1989 order. The District Court ordered Poindexter and Insured
Titles to show cause why Rita should not be allowed to execute upon
the property.
After a hearing, the court determined that Ken's homestead
exemption was abandoned when he sold his interest in the property
to Poindexter. It reasoned that because Rita's judgment liens had
never been removed or extinguished, those liens attached and
encumbered the property at the time the homestead exemption was
abandoned and thus the property was conveyed to Poindexter subject
to the liens and to the court's execution order. In June 1991, the
court ordered that Rita may execute on the property in the amount
of $8,749.02 plus interest. This included $2,113.53 remaining due
from the earlier execution, plus interest on that amount; mainte-
nance from May to September 1990 plus interest (those past-due
payments having been reduced to a judgment in October 1 9 9 0) ; and
past-due maintenance from October 1990 to May 1991. The court
stated that the attorney fees awarded under the January 24 , 1989
order had not attached to the property.
Rita has already executed on Ken's half of the proceeds of the
sale of the Florence property. Prior to the entry of any of the
judgments upon which execution is sought, Ken conveyed a total of
half of his interest in that property to his second wife and two
daughters. As indicated in the order from which appeal is taken,
Poindexter purchased the property from the four tenants in common.
Absent a setting aside of the conveyances from Ken to his second
wife and daughters, we conclude that judgment liens against Ken's
property would not support an execution against the interests of
the second wife and daughters and therefore do not support
execution against the interest Poindexter purchased fromthe second
wife and daughters.
There is another problem with allowing sale of the property
for execution on the District Court judgments for maintenance due
from May to September 1990 and from October 1990 to May 1991.
Those maintenance payments became due and judgments were entered
after Ken sold the real property in Florence to Poindexter. Under
5 70-21-306, MCA, a purchaser takes property subject to prior
judgments filed and recorded as provided in 5 7-4-2613, MCA.
However, no authority has been cited that a purchaser takes
property subject to subsequent judgments against the seller. We
conclude that execution may not be had upon the Florence property
for judgments entered against Ken after Poindexter purchased the
property.
Because of our resolution of this restated issue, we do not
reach the other issues raised.
Reversed.
We concur: