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271 Ala. 372

Kendrick v. Kendrick

Supreme Court of Alabama

Decided November 3, 1960

Supreme Court of Alabama · decided 1960-11-03

Key passage — most relied on by later courts

“"We are of the opinion that the exemption provision under consideration should not be construed as applying to awards for alimony or child support for the reason that such awards are not debts of the pensioner under the rule of our cases. "In Ford v. Ford , 201 Ala. 519 , 78 So. 873 , we held that a husband could not claim exemption of his homestead against a levy of execution upon his land to enforce payment of alimony pendente lite because a decree for alimony was not a `debt contracted' within the meaning of the constitutional and statutory provisions relating to homestead exemptions. To like effect are Littleton v. Littleton , 224 Ala. 103 , 139 So. 335 ; Horan v. Horan , 259 Ala. 117 , 65 So.2d 486 ; Coon v. Coon , 264 Ala. 127 , 85 So.2d 430 . See also Ryan v. Ryan [271] Ala., [243] 123 So.2d 102 ."”

quoted by 1 later decision, including Ex Parte Griggs

Relies on Fischer v. Fischer · 160 Pa. Super. 438 - Commonwealth v. Berfield · Courtney v. Courtney

Good law ✅— No negative treatment on recordhow we know

Decided 1960-11-03

How this case has been cited

Cited by 9 later decisions — most recently November 1995

9 state decisions

401960197019801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

LAWSON, Justice.

¶1The question for decision is whether payments to a retired employee under a pension plan created by a contract between his employer and his labor union are subject to attachment by the retired employee’s former wife to pay a child support award, when the terms of the contract between the employer and the union provide:

“To the extent permitted by law, no assignment thereof or encumbrance of any kind of pension benefits will be permitted or recognized, and benefits shall not be subject to attachment or other legal process for debts of the pensioners.”

¶2The trial court held in effect that because of the provisions just above quoted, Oscar *373Lee Kendrick “has no right or credit in said pension fund which is subject to attachment or execution.” That holding is the only matter presented for our consideration on this appeal by Alice Kendrick, the former wife of Oscar Lee Kendrick.

¶3We do not get to the question as to whether an employer and his employee through the latter’s union may, by contract, legally exempt pension benefits due the employee from attachment or execution to satisfy an award of alimony or child support.

¶4We are of the opinion that the exemption provision under consideration should not be construed as applying to awards for alimony or child support for the reason that such awards are not debts of the pensioner under the rule of our cases.

¶5In Ford v. Ford, 201 Ala. 519, 78 So. 873, we held that a husband could not claim exemption of his homestead against a levy of execution upon his land to enforce payment of alimony pendente lite because a decree for alimony was not a “debt contracted” within the meaning of the constitutional and statutory provisions relating to homestead exemptions. To like effect are Littleton v. Littleton, 224 Ala. 103, 139 So. 335; Horan v. Horan, 259 Ala. 117, 65 So.2d 486; Coon v. Coon, 264 Ala. 127, 85 So.2d 430. See also Ryan v. Ryan, ante, p. 243, 123 So.2d 102.

¶6Our holdings in the cases just cited are in accord with the majority rule. The courts of other states have generally held that statutes exempting property from legal process in the enforcement of a claim for debt, or debt arising from a contractual relationship, are not applicable against a claim for alimony, since such a claim is not a debt and an award of alimony does not create a debtor-creditor relationship. See the cases listed in 54 A.L.R.2d at page 1424.

¶7Although an award of child support may not be alimony in a technical sense, it is enforced as against exemptions in the same manner as alimony. Davis v. Davis, 246 Iowa 262, 67 N.W.2d 566. To the same effect see Guard v. Guard, 116 Ind.App. 396, 64 N.E.2d 802; Walker v. Walker, 204 N.C. 210, 167 S.E. 818.

¶8For other cases which support our view of the matter see Zwingmann v. Zwingmann, 150 App.Div. 358, 134 N.Y.S. 1077; Weigold v. Weigold, 236 App.Div. 126, 258 N.Y.S. 348; Jackson v. Jackson, 194 Misc. 134, 86 N.Y.S.2d 516; Fischer v. Fischer, 13 N.J. 162, 98 A.2d 568; Commonwealth v. Berfield, 160 Pa.Super. 438, 51 A.2d 523; Pishue v. Pishue, 32 Wash.2d 750, 203 P.2d 1070; Stirgus v. Stirgus, 172 Miss. 337, 160 So. 285; Courtney v. Courtney, 251 Wis. 443, 29 N.W.2d 759.

¶9In view of the foregoing, it follows that the decree of the trial court is due to be reversed. It is so ordered.

¶10Reversed and remanded.

LIVINGSTON, C. J., and STAKELY and MERRILL, JJ., concur.
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