In Re MacDonald

41 B.R. 716, 1984 Bankr. LEXIS 5236
CourtUnited States Bankruptcy Court, D. Hawaii
DecidedAugust 8, 1984
Docket19-00127
StatusPublished
Cited by1 cases

This text of 41 B.R. 716 (In Re MacDonald) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MacDonald, 41 B.R. 716, 1984 Bankr. LEXIS 5236 (Haw. 1984).

Opinion

*718 FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: PROOF OF CLAIM FOR CHILD SUPPORT

JON J. CHINEN, Bankruptcy Judge.

Debtor filed the instant Chapter 13 proceeding on October 1, 1980. Wife of Debt- or, filed a proof of claim for child support payments in the amount of $13,295.44. Debtor filed an objection on August 4, 1982, contending that payments had been made through garnishment of Debtor’s military pension. Debtor .suggested that the amount owing was $3,142.00. Debtor then filed a Memorandum Objecting to Proof of Claim on June 21, 1983. A hearing was scheduled for June 6, 1983 but the opposing parties submitted a stipulation of facts which was entered on July 11, 1983. Creditor filed her Memorandum in Support of Creditor’s Claim on July 11, 1983.

Based on the memoranda on file and the exhibits thereto, the Court makes the following Findings of Facts and Conclusions of Law:

FINDINGS OF FACT

1. Prior to August 2,1960, Debtor, Husband Robert Bruce MacDonald was married to Creditor, Mary C. MacDonald (hereinafter referred to as “Mrs. Hunt”).

2. On August 2, 1960, a decree of divorce was entered in the Superior Court of the State of Washington in Pierce County in Mary C. MacDonald v. Robert B. MacDonald, No. 142914.

3. Besides awarding Mrs. Hunt care, custody and control of the parties’ children, Mr. MacDonald was also ordered in the Decree to pay Mrs. Hunt the sum of $157.10 per month for the care, support and maintenance of the children. Said payments were to continue until the children attained the age of 21 years, were emancipated or became self-supporting, whichever occured earliest.

4. Mr. MacDonald’s obligation to make child support payments ended in April 1976.

5. On March 12, 1974, the Superior Court of the State of Washington in Pierce County entered its Judgment and Decree regarding delinquent child support payments. The Court found that Mr. MacDonald had failed to make requisite child support payments for the period' May 1968 through March 1974 and ordered him to pay a total of $11,154.10 ($157.10 x 71 months) in delinquent child support payments.

6. Mrs. Hunt subsequently garnished Debtor MacDonald’s military pension from June 1977 until the automatic stay pursuant to 11 U.S.C. § 362 took effect upon the filing of the instant bankruptcy. At that time, a total of $11,356.37 had been collected pursuant to the garnishment.

7. On October 1, 1980, Debtor MacDonald filed a petition for Chapter 13 bankruptcy.

CONCLUSIONS OF LAW

Under Washington law, each installment of alimony or child support, when unpaid, becomes a separate judgment and bears interest from the due date. Installments of alimony or child support which accrued for more than the specified number of years before commencement of collection proceedings are banned by the statute of limitations. Roberts v. Roberts, 69 Wash.2d 863, 420 P.2d 864, 866 (1966). The rights and liabilities of the parties become fixed as to each installment of child support when it becomes due. St. Germain v. St. Germain, 22 Wash.2d 744, 757, 157 P.2d 981 (1945). Any subsequent judgment, which aggregates previously unpaid installments, does not lengthen the statute of limitations. The rationale is that although a series of past due support installments may be reduced to a single judgment, the lump-sum judgment is an ancillary proceeding to clarify the amount where there is a question as to the amount of arrearages. Valley v. Selfridge, 30 Wash.App. 908, 639 P.2d 225 (1982). Thus, the lump sum judgment which was entered in March 1974, which found Debtor delinquent in child support payments, clarified the amount owed but did not establish a *719 new date from which the statute of limitations would run. Valley v. Selfridge, supra.

Debtor argues that the statute of limitations bars the collection of unpaid child support accrued more than six years before the issuance of the garnishment, based on Valley v. Selfridge, supra. In that case, Mrs. Valley divorced Mr. Selfridge and was awarded child support. Mr. Selfridge was subsequently ordered to pay delinquent child support. The trial judge held that the Uniform Reciprocal Enforcement of Support Act (USERA) order of support did not modify the original divorce decree pursuant to the above-cited law. The appellant Court agreed, citing two Washington Statutes. The first, RCW 4.16.040, stated that an action for judgment was limited to six years. The other, a lien statute at RCW 4.56.210 provided:

After the expiration of six years from the date of the entry of any judgment heretofore or hereafter rendered in this state, it shall cease to be a lien or charge against the estate or person of the judgment debtor, and no suit, action or other proceeding shall ever be had on any judgment rendered in this state by which the lien or duration judgment, claim or demand, shall be extended or continued in force for any greater or longer period than six years from the date of the entry of the original judgment, except as in RCW 4.56.225 provided. (Italics ours). Valley v. Selfridge, supra 639 P.2d at 228.

The court concluded that:

Read together, these sections indicate that no action whatsoever may be taken to enforce child support arrearages after 6 years from the date they became due, even though they have been reduced to a judgment within the 6-year period. The cases support this conclusion. Valley v. Selfridge, supra.

Thus, the law may be summarized as follows: where there are past-due delinquent monthly installments for child support for a previous statute of limitation period and a timely proceeding is brought to clarify the amount to a judgment, the proceeding does not extend the time for enforcing collection of installments for the additional years.

Creditor argues that a statute of limitation provides a party a defense and not a bar to a claim, thus necessitating that a party must assert that defense. It may be waived, and is waived when a defendant defaults or when he appears and fails to interpose it as a defense. State ex rel. Teeter v. Superior Court, 110 Wash. 255, 188 P. 391, 392 (1920); also Davis v. Nielson, 9 Wash.App. 864, 515 P.2d 995 (1973).

In September 1979, R.C.W. 4.16.-020 1

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Bluebook (online)
41 B.R. 716, 1984 Bankr. LEXIS 5236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-macdonald-hib-1984.