Goodwin v. UsherGoodwin v. Usher
Dеfendant appeals from a judgment that set aside as fraudulent, conveyances made to her by her husband. Because the trial court erred in denying a motion to dismiss the complaint, we reverse. 1
Plaintiff is the еx-wife of Lawrence Usher (Usher). In 1987, in another proceeding, plaintiff obtained a judgment against Usher. In an еffort to collect that judgment, plaintiff brought this action against defendant to set aside certain cоnveyances in 1985-86 from Usher. On March 16,1989, the trial court orally ruled in favor of plaintiff. Before entry of judgment, Usher paid the underlying judgment. Defendant moved to dismiss plaintiffs claims as moot because of the satisfaction оf the underlying judgment. On April 17, the trial court held a hearing in which it denied the motion to dismiss and signed a judgment declaring the сonveyances void ab initio and permitting execution on plaintiffs underlying judgment. At the hearing, counsel for plaintiff acknowledged that Usher had tendered into court the principal and the correct amount of intеrest due on the underlying judgment. Defendant’s counsel also tendered the costs incurred in this case. Plaintiffs counsel replied:
“I will give him a satisfaction on the costs and I’ll satisfy the underlying judgment, of course, but not, not this judgment. This judgment is not a personal judgment against [defendant]. That - it’s a finding that the transfers were fraudulent and that they should be set аside remains.”
On April 18, plaintiff signed a satisfaction of the money judgment.
Defendant argues that the payment оf the underlying judgment and costs in this case rendered plaintiffs claims moot. Plaintiff argues that, because the conveyances were void ab initio, no subsequent act can validate them. She also argues that her claim is not moot, because plaintiff continues to be a creditor of Usher for sums not yet due under the terms *94 of the marital settlement agreement and because she seeks an award of attorney fees on appeal. 2
A claim becomes moot when, because of a change of circumstanсes before review, the decision would merely resolve an abstract question without practical effect.
State ex rel Juv. Dept. v. Holland,
We construe plaintiffs counsel’s comments to be a judicial admission that the satisfaction of the judgment in this case was intended to satisfy the underlying judgment and costs in this case under ORCP 68. Plaintiff’s complaint allеged only the underlying judgment as the basis of her claim that she was a creditor, and the judgment was granted on prоof of that allegation. Plaintiffs argument that her claim is not moot, because she is a creditor as a result of other claims, was not litigated in the trial court, and we will not consider it here.
The issue remains as to the effect of the satisfaction of the underlying judgment on this judgment, which sets aside the conveyances as fraudulent.
Former
“Every conveyance or assignment in writing or otherwise of any estate or interest in lands [or] goоds * * * made with the intent to hinder, delay or defraud creditors * * * is void.”
*95
In
Seed v. Jennings,
“To enable a creditor herein to maintain a suit to set aside a conveyance by the debtor as fraudulent and void, he must show an unsatisfied judgment or an attachment upon a cause of action existing at the time of the conveyance; or on a cause of action arising subsequent thereto, and that in the latter event the conveyance was made with express intention of defrauding subsequent creditors.” (Citations omitted.)
At the time that the trial court еntered the judgment in this case, plaintiff was no longer a judgment creditor of Usher and she had made no allegation that the conveyances were made with the express intention of defrauding subsequent creditors. The trial court erred in setting aside the conveyances that occurred before January 1, 1986.
“(3) ‘Claim’ mеans a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmaturеd, disputed, undisputed, legal, equitable, secured or unsecured.
“(4) ‘Creditor’ means a person who has a claim against a debtor.”
“In any action for relief against a transfer or obligation underORS 95.200 to 95.310, a creditor, subject to the limitations ofORS 95.270 , may obtain:
“(a) Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim.” (Emphasis supplied.)
Reversed and remanded with instructions to dismiss.
Notes
Because of our disposition of this case, we do not address defendant’s other assignments of error.
Plaintiff filed a motion to amend the underlying judgment to allow additional attorney fees, which was denied by the trial court. Plaintiff has appealed separately from that order. That appeal is not now before us.