Plаintiff-appellant brought an action for divorce. A judgment and decree of divorce were granted to the plaintiff against the defendant оn October 17, 1969. Pursuant to said decree, defendant was ordered to pay directly to the plaintiff’s attorney $3,530.40 for attorney’s fees and costs and as security therefor plaintiff’s attorney was awarded a lien in said amount upon the community residence of the parties awarded to the defendant under the decree of divorce.
Some seven months later, on April 15, 1970, as a result of a show cause hearing, due to the defendant’s failure to pay the attorney’s fees and costs as ordered, plaintiff’s attorney was awarded a judgment against the defendant for $3,530.40. In aid of said judgment, on April 17, 1970, a Special Execution was issued to the Sheriff of Maricopa County, Arizona, directing the sale of the residence awarded to the defendant upon which the plaintiff’s attorney had been awarded a lien under the divorce decree itself.
Thereafter, a properly noticed Sheriff’s Sale was set for the 21st day of May, 1970. At said sale, plaintiff’s attorney purchased the property for the amount of the judgmеnt, plus costs and accrued interest. A Sheriff’s Certificate of Sale on Foreclosure was given to the attorney as evidence of his purсhase. A Sheriff’s Deed was later issued for said property to him on December 22, 1970, and was recorded on December 31, 1970.
On January 5, 1971, a Writ of Assistance was issued to the Maricopa County Sheriff, which was obtained on petition of plaintiff’s attorney to effectuate the removal of the defendant from the premises.
On January 18, 1971, the defendant obtained a temporary restraining order based upon his verified petition wherein the plaintiff and/or her attorney were restrained from removing the defendant from the premises.
*30 Defendant had filed a Declaration of Homesteаd on December 1, 1969, almost two months after the entry of the decree of divorce. It purported to cover the property awardеd to the defendant in the ■decree and upon which the plaintiff’s attorney had been given a lien to secure the ■attorney’s fees and cоsts awarded to him pursuant to the divorce decree.
On February 4, 1971, after a hearing, the Court entered an order permanently enjoining the plaintiff and/or her attorney from obtaining possession of the premises.
It is from this order that plaintiff appeals.
QUESTIONS ON APPEAL
1. Was the defendant entitled to declare a homestead, and
2. Does a homestead declaration exempt from execution аnd sale the property upon which a lien was granted in the divorce decree to secure payment of the wife’s attorney’s fees?
Pursuant to A.R.S. § 25-371, the trial court ordered the defendant-appellee to pay 'his wife’s attorney’s fees and made them _payable directly to thе attorney. The statute further provides that:
“Any such order may be enforced by the court in the same manner as an order made on behalf of any party to the action.”
We will assure, arguendo, that defendant -was entitled to declare a homestead since -we believe that the answer to the secоnd question is dispositive of this appeal.
We find no Arizona cases directly in point, but believe a California decision to be very persuasive. The California court in Henry v. Henry,
The court in
Henry
pointed out the difference betweеn a judgment for money or property and that of a decree for alimony. One of the characteristics of a judgment for alimony is that as аgainst such judgment the judgment debtor’s earnings are not exempt from execution. Bruton v. Tearle,
The Henry court included this discussion of the attorney fee award:
“The attorney fee award now under discussiоn was made as a part of the same order which awarded support for the wife and children. Though it runs in favor of the attorney, that fact doеs not alter its character as an award to enable the wife to establish her rights, as to support and otherwise, against the husband. See, Weil v. Superior Court,97 Cal.App.2d 373 , 376,217 P.2d 975 . In Marshank v. Superior Court,180 Cal. App.2d 602 ,4 Cal.Rptr. 593 , 595, we quoted the Weil case as follows: ‘The attorney’s right to the amount allowed for counsel fees for his services rendered tо a wife is no more proprietary and direct by virtue of section 137.5 of the Civil Code than before its enactment. That section provides that whеn attorney’s fees are allowed they may, in the discretion of the court, be made payable in whole or in part to the attorney. Notwithstаnding the fees may be made payable to the attorney, they are granted to the wife for her benefit and are not awarded to her attorney. * * * A wife’s attorney has no separate equity in counsel fees awarded to her. His right thereto is derived from his client.’ ”
* * * # * *
*31 “An award of an attorney fеe to a plaintiff-wife is an adjudication of her need of such support in order to litigate with her husband upon an equal basis. Without the attorney fеe the wife in most cases can obtain no support money or no adequate support; the services of the attorney are indispеnsable.”6 Cal.Rptr. at 421 .
The principle of alimony and the reasons why exemption statutes are considered inapplicable thereto are discussed in the annotation in
“The basis of alimony is usually considered to be the natural obligation of a husband to support his wife and children and the purpose of the exemption laws is almost universally considered to be to protect the unfortunate debtor and save him a means of supрorting his family. (Footnote omitted)
Applying these broad principles, the courts have generally held that statutes exempting property from lеgal process in the enforcement of a claim for debt, or debt arising from a contractual relationship, are not applicаble against a claim for alimony or support, since such a claim is not a debt and an award of alimony does not create a debtor-creditor relationship between husband and wife.”
Since the attorney’s fees were here awarded as part of the same decree awarding support for the wife and children, and since we believe such fee is as much support as any payments directly to the wife, we conclude that the property here in question may not be held exempt from what is essentially a claim for support. The Sheriff’s Sale was proper and the permanent injunction should not have been granted.
The order granting a permanent injunction is reversed and the case remanded for proceedings consistent with this opinion.
NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. § 12-120, subsec. E.