Bell v. Bingham

484 N.E.2d 624, 1985 Ind. App. LEXIS 2891
CourtIndiana Court of Appeals
DecidedOctober 31, 1985
Docket2-984-A-270
StatusPublished
Cited by17 cases

This text of 484 N.E.2d 624 (Bell v. Bingham) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. Bingham, 484 N.E.2d 624, 1985 Ind. App. LEXIS 2891 (Ind. Ct. App. 1985).

Opinions

BUCHANAN, Chief Judge.

CASE SUMMARY

Plaintiff-appellant Olin P. Bell (Olin) appeals the trial court's entry of summary judgment in favor of defendants-appellees Max and Beverly Ann Bingham [hereinafter collectively referred to as the Bing-hams] and John W. Vironet (Vironet) claiming the trial court erred by denying as untimely his petition to foreclose a judgment lien and his claim against Vironet, the sole distributee of the estate of Mary Ellen Bell (Mary).

We affirm.

FACTS

The facts viewed in a light most favorable to Olin are as follows: Olin and Mary were divorced in 1978 pursuant to a decree issued by the Madison Superior Court. In pertinent part, the decree provided:

"'The Court approves the oral property settlement, to-wit: Petitioner (Mary) shall pay over to respondent (Olin) the sum of twenty-two thousand five hun dred dollars ($22,500.00) in the form of an alimony judgment as defined under the Federal Law. That said twenty-two thousand five hundred dollars will be payable over a period of ten years and one month.... That further, the nursing home, all equipment, inventory, all personal items, real estate are set over to petitioner including the residence next door at 623 Adams will be turned over to her as her sole property and that respondent have no further interest in said [626]*626real estate at 623 or 625 Adams whatsoever."

Record at 172-78 (emphasis supplied). Olin received regular monthly payments of $185.00 through March 22, 1980.

Mary died on March 21, 1980. Vironet, Mary's son, opened her unsupervised estate in the Madison Superior Court. Vironet was appointed executor and published notice to creditors on April 30, 1980 and May 7, 1980. On February 19, 1981, the court approved a land sale contract entered into by Mary before her death. As executor, Vironet completed the land sale contract and conveyed the real estate located at 628 Adams Street to the Binghams. Vironet paid all the claims filed in Mary's estate. As the only distributee of Mary's estate, Vironet collected his bequest and closed the estate on April 24, 1981.

Over two years after Mary's death, in November of 1982, Olin filed suit against the Binghams and Vironet claiming that he was a secured creditor of Mary's estate because his "alimony" judgment was a lien against the property which had been conveyed to the Binghams, and that as sole distributee Vironet was responsible to Olin for Olin's claim up to the amount Vironet received from the estate. The trial court granted summary judgment in favor of the Binghams and Vironet, and Olin appeals.

ISSUE

The sole question presented for our review is:

Whether the trial court erred by granting summary judgment in favor of Viro-net and Binghams?

DECISION

PARTIES' CONTENTIONS-Olin contends the judgment against Mary was a lien against her real estate so that compliance with the five month claim statute was unnecessary and his judgment may be satisfied from either Binghams' real estate or Vironet's assets by an action brought within three years of Mary's death. Binghams respond that the divorce decree was payable in installments, therefore no lien arose. Vironet argues Olin's action is barred because no timely claim was filed against Mary's estate.

~CONCLUSION-The trial court did not err by granting summary judgment in favor of Vironet and Binghams because the divorce decree did not attach as a lien to Mary's real estate.

Summary judgment is appropriate when the pleadings, affidavits, testimony, and products of discovery demonstrate there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. McMahan v. Snap On Tool Corp. (1985), Ind.App., 478 N.E.2d 116; Anderson v. State Form Mut. Auto. Ins. Co. (1984), Ind.App., 471 N.E.2d 1170; Ind.Rules of Procedure, Trial Rule 56.

We recognize that more than one statute regulates the manner in which certain creditors are assured payment of their money judgments. Our general judgment lien statute, codified at Ind.Code 34-1-45-2 (1982), provides as follows:

"All final judgments for the recovery of money or costs in the circuit court and other courts of record of general original jurisdiction sitting in the state of Indiana, whether state or federal, shall be a lien upon real estate and chattels real liable to execution in the county where, and only where, such judgment has been duly entered and indexed in the judgment docket as provided by law, from and after the time the same shall have been so entered and indexed, and until the expiration of ten [10] years from the rendition thereof, and no longer, exclusive of the time during which the party may be restrained from proceeding thereon by any appeal or injunction or by the death of the defendant, or by agreement of the parties entered of record."

[Hereinafter cited as the judgment lien statute]. Additionally, in dissolution actions a trial court must, absent an agreement of the parties, divide the parties' property, and the court may require some assurance of payment of the property divi[627]*627sion. IC 31-1-11.5-11 (1982); IC 31-1-11.-5-15. [Hereinafter collectively cited as the dissolution statutes]. IC 81-1-11.5-15 provides as follows:

"Security for Payment. Upon entering an order pursuant to section 11 or 12 of this chapter, the court may provide for such security, bond or other guarantee that shall be satisfactory to the court to secure the obligation to make child support payments or to secure the division of property."

Therefore, in some respects both the judgment lien statute and the dissolution statutes speak to the same subject matter: assurance of payment of judgments.

When two statutes or two sets of statutes speak to the same subject matter, effect should be given to both acts if possible. Wright v. Gettinger (1981), Ind., 428 N.E.2d 1212; Indiana State Highway Comm'n v. Bates & Rogers Constr. (1983), Ind.App., 448 N.E.2d 321. If the two statutes cannot be harmonized or reconciled, then, as a general rule of statutory construction, the more specific or detailed statute should prevail over the more general statute. Sanders v. State (1984), Ind., 466 N.E.2d 424; Stream Pollution Control Bd. v. Amax, Inc. (1985), Ind.App., 475 N.E.2d 1157; Indiana State Highway Comm'n, supra.

A judgment lien is purely a creature of statute. Wells v. Benton (1886), 108 Ind. 585, 8 N.E. 444; Uhrich v. Uhrich (1977), 173 Ind.App. 133, 362 N.E.2d 1163, trams. denied; Taylor v. McGrew (1902), 29 Ind.App. 824, 64 N.E. 651. It arises by operation of law when the events enumerated in the judgment lien statute come to pass. Sullivan State Bank v. First Nat'l Bank (1925), 82 Ind.App. 419, 146 N.E. 408.

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Bell v. Bingham
484 N.E.2d 624 (Indiana Court of Appeals, 1985)

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Bluebook (online)
484 N.E.2d 624, 1985 Ind. App. LEXIS 2891, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-bingham-indctapp-1985.