Lead Opinion
Cаrole Seablom appealed from an order issued by the district court of Traill County, which determined that her ex-husband, John Seablom, was not in civil contempt for failure to make payments pursuant to their divorce decree. We affirm.
In May 1982 the district court granted John a divorce from Carole on the ground of irreconcilable differences. John and Carole, who had been married for 22 years and had no children, had submitted to the district court a proposed settlement. The agreement provided that Carole was to receive as her exclusive property the family residence and a cаr, both free from encumbrances; household goods and furnishings; and personal effects. John was to receive as his exclusive property farm tools and equipment, land, crops, an IRA and a checking account, and personal effects. John was to be liable for the large loans obtained for farming expenses; and John and Carole were to be liable individually for other smaller debts.
The agreement further stated:
“9. The plaintiff shall pay to the defendant the sum of Twenty-five Thousand Dollars ($25,000.00) which is due within 60 days of the date of Judgment.
“10. That the plaintiff shall pay unto the defendant as and for alimony the further sum of $14,400.00 payable in 36 consecutive monthly installments at the rate of $400.00 per month commencing on the 15th day of May, 1982, and payable on the 15th day of the month thereafter until paid in full. These payments shall not be terminated due to the death or remarriage of either party. The plaintiff may prepay all or part of this amount at any time.
“11. Upon pаyment of the $25,000.00 amount referred to above, each party shall execute and deliver to the other such instruments of title or conveyance which may be necessary to effect the foregoing division of property.”
The district court discussed each provision of the proposed agreement with both parties. After determining their comprehension of the oral stipulation and after finding that the stipulation was an equitable settlement of their interests, the court incorporated the proposed settlement in its judgment.
When John was unable to pay Carole $25,000, as required by provision 9, they entered intо another agreement, which extended the period for payment and provided for interest on the amount due. Carole received some of the $400 monthly payments, as required by provision 10.
In March 1983 Carole sought to enforce the $25,000 debt by execution on John’s property. John declared his property exempt under Chapter 28-22, N.D.C.C., and the writ of execution was returned unsatisfied. Carole also sought to enforce the $400 monthly debt through civil contempt proceedings under Section 27-10-03, N.D. C.C. The district court conducted a hearing to determine if John was in contempt for failure to pay the $400 monthly payments. The сourt determined that the $400 monthly payments constituted property, not spousal support; that civil contempt would not lie; and that execution was the only remedy available for enforcement of the $400 monthly debt.
On appeal Carole argues that the district court erred in determining that the monthly payments constituted a distribution of propеrty, not spousal support. In the alternative, Carole contends that even if the divorce decree is a final settlement of property rights, the district court should have enforced the decree by using its contempt powers or by declaring that the exemption statutes of Chapter 28-22 are not applicable to divorce judgments. Carole also raises other issues that relate to the standard of proof and burden of proof in contempt proceedings. Because we determine that civil contempt is not a proper remedy to enforce the divorce judgment, we do not addrеss the issues relating to contempt proceedings.
Carole contends that civil contempt is a proper remedy for enforcement of the monthly payments required by provision 10 of the divorce decree. Section 27-10-03, N.D.C.C., provides, in part:
“27-10-03. Acts punishable as civil contempts. — Every court of record of this state may punish as for a civil contempt any person guilty of a neglect or violation of a duty or other misconduct by which a right or remedy of a party to a civil action or proceeding pending in such court may be defeated, impaired, impeded, or prejudiced in the following eases: ...
“3. A party to an action or рroceeding, ... for the nonpayment of a sum of money ordered by the court to be paid in a case where by law execution cannot be awarded for the collection of such sum, or for any other disobedience to any lawful order, judgment, or process of the court; ...” [Emphasis supplied.]
In Dvorak v. Dvorak,
Carole sought to enforce the divorce decree by using execution as a remedy for the payment of the $25,000 (provision 9) and by using civil contempt as a remedy for the monthly payment of $400 (provision 10). Her selection of enforcement procedures does not, however, determine the nature of the monetary awards. Carole and John agree that the $25,000 payment is a form of property division; with respect to the $400 monthly payments, Carole interprets the payments as spousal support, John as property division.
At both the divorce hearing and the contempt hearing, Carole’s attorney, who did not represent her on appeal, stated that the monthly payments were in the naturе of a property settlement. When Carole’s attorney examined the proposed findings of fact in the divorce proceeding, which were prepared by John’s attorney, she requested that the payments be described as “alimony payments.” John’s attorney agreed to characterize thе payments as alimony, and
Courts encourage settlements in divorce actions. Fleck v. Fleck,
In the present case the word alimony in provision 10 does not indicate the parties’ intent. This court has frequently stated that the word alimony is ambiguous because the word may denote either property distribution or spousal support. See, e.g., Coulter v. Coulter,
Spousal support may be for a definite period of time to aid а disadvantaged party in acquiring new skills or it may be permanent to provide maintenance for a party incapable of rehabilitation. See, e.g., Smith v. Smith,
Provision 10 states that the monthly pаyments will not terminate upon the remarriage or death of either party. Although proof that the obligee has remarried establishes a prima facie case that spousal support should terminate, the obli-gee may continue to receive spousal support if extraordinary circumstanсes justify its continuance. See Nastrom v. Nastrom,
The statement that payments would not terminate aftеr Carole’s death does, however, suggest property distribution. The obligor’s death does not necessarily terminate the payment of a property distribution or of spousal support. See Matter of Estate of Gustafson, supra; Stoutland v. Stoutland’s Estate,
In determining the nature of provision 10, we read it in context of the decree itself. Provision 11 reveals that the $25,-000 payment is secured because Carole is to execute and deliver instruments necessary for property division upon receipt of the $25,000 payment. Although the securing of the debt for $25,000 may suggest by contrast that the failure to secure the monthly payments indicates that the latter constitutes spousal support, we beliеve that
In the present case the same judge presided during the divorce and contempt proceedings. The judge had the opportunity to view the demeanor and ascertain the credibility of the parties. Although the interpretation of a contract is a matter of law for the court, we recognize the judge’s opportunity to examine the difficult issue of intent in the context of the parties’ demeanor and credibility. We do not believe that the district court erred in determining that provision 10 denotes property division.
Cаrole argues that even if the payments constituted property division, the district court nevertheless had jurisdiction to enforce the divorce decree by civil contempt after John claimed the exemptions provided by Chapter 28-22, N.D.C.C. In Dvorak v. Dvorak, supra, this court stated that contempt proceedings would not lie whеn a party sought to enforce a judgment for the distribution of property. We recognized that the sums of money due can be collected through the process of execution. Carole argues that' because the writ of execution on John's property was returned unsatisfied, the sums of money due under thе divorce judgment cannot be collected through the process of execution; and because the sums were not collected, civil contempt is a proper remedy.
We disagree with Carole’s interpretation of Dvorak, supra, which construes Section 27-10-03. Section 27-10-03 implies that civil contempt and execution are mutually exclusive procеdures for enforcement of a judgment. A property distribution is enforceable by execution on the judgment. Dvorak, supra. When a writ of execution is returned unsatisfied, a party may later execute on the debtor’s property because the remedy remains available for 10 years after the entry of the judgment. See Sеction 28-21-01, N.D.C.C. We therefore conclude that under our current statutes civil contempt is an improper remedy for the enforcement of a distribution of property.
In the alternative Carole contends that the exemption statutes of Chapter 28-22 do not apply to judgments entered in divorce prоceedings. When Carole sought to enforce the judgment by execution, John claimed the exemptions provided by Sections 28-22-02 and 28-22-03, N.D.C.C. John claimed as exempt the property he received from the property distribution.
Exemption statutes are remedial and are to be liberally construed to effеctuate the purposes of their enactment. Falconer v. Farmers U. Oil Co.,
The Legislature has specified under what circumstances exemptions are inapplicable. Subsection 7 of Section 28-22-02 provides for a homеstead exemption as defined by law. Section 47-18-04, N.D. C.C., specifies the four situations in which a party may not claim the homestead exemption. Subsection 10 of Section 28-22-02 states that certain property may not be exempt from process, levy, or sale for taxes levied on it pursuant to Chapter 57-55. Althоugh this case may involve obvious injustice, we recognize that the Legislature, not this court, is the proper body to amend the statutes governing this matter. It is for the Legislature to specify the exemptions which should be applicable in
We do not find the appeal frivolous. See Nissen v. City of Fargo,
The order is affirmed.
Notes
. We interpret the order issued by the bankruptcy court as granting relief from the automatic stay of Section 362, 11 U.S.C. We therefore do not need to determine if this court has concurrent jurisdiction to consider the merits of the action. See Stamper v. Stamper,
Concurrence Opinion
concurring specialty-
Someday, hopefully, an argument will be presented to a trial court in a divorce case that the marital assets should be equitably divided by awarding to the husband his share, and to the wife her share. Neither party will be labeled judgment creditor, and neither will be labeled judgment debtor. Therе will be no resulting, unsolvable complications involving the law of bankruptcy, or execution and exemption, or contempt. Claims of waiver of the right to appeal by the acceptance of benefits will not be made. But this is not such a case, and so tradition and appellate rules compel me to concur in spite of the ‘“obvious injustice” pointed out by Justice VandeWalle.