Opinion
Rehearing Denied July 20, 1973. Opinion Superseded 307 W.E.2d 867.
Page 893
David F. Shadel, Indianapolis, for defendant-appellant.
Steven H. Ancel, Indianapolis, for plaintiff-appellee.
SULLIVAN, Judge.
The facts are not in dispute. Plaintiff properly obtained a money judgment for defendant's default upon a retail installment contract. Following proceedings supplemental, the trial court, on May 4, 1972 issued a final order in garnishment against defendant's employer pursuant to IC 1971, 24-4.5-5-105, Ind.Ann.Stat. § 19-25-105 (Burns 1972 Supp.). The order limited the garnishment to 25% of defendant's Disposable Earnings exceeding $48.00 per week.
The pertinent portion of the statute is as follows:
It is appellant's argument that she is entitled to the provisions of IC 1971, 34-2-28-1, Ind.Ann.Stat. § 2-3501(d) (Burns 1968 Repl.), more beneficial to her, which exempt from garnishment for any judgment growing out of a contract the first $15.00 of weekly income of a 'resident householder' and 90% of the excess over $15.00.
It has been held that the 'resident householder' exemption provided by § 2-3501 (even if not impliedly repealed by § 19-25-105 as to wages, a question we do not decide) with respect to property other than income or profits, must be asserted as a partial or complete defense. Gregg v. State ex rel. Branch (1898) 151 Ind. 241, 51 N.E. 359, and that a right to an exemption under § 2-3501 requires a specific claim thereto, a general allegation of the existence of the right not sufficing. Goldthait v. Walker (1893) 134 Ind. 527, 34 N.E. 378.
Notwithstanding the venerable and viable principle of Indiana law to the effect that while the right to claim property as exempt is a personal privilege of the debtor the law presumes that such claim will be made (State ex rel. Hulman v. Harper (1889) 120 Ind. 23, 22 N.E. 80), such presumption should not attach to an exemption which is applicable only if certain factual variables are shown to exist. Thus where an exemption is not made absolute by the express terms of the statute conferring such exemption and where the requisite facts are not disclosed to the court by allegation and evidence, the court is not obligated to interpose such exemption on behalf of the judgment debtor. In Finley v. Sly (1873) 44 Ind. 266, 269, the court held:
'. . . we are clear that when the execution defendant ceases to be a resident householder, as he is required to be according to the statute, in order to be entitled to the exemption, he ceases to be entitled to the benefit of the statute.
The third paragraph of the reply was bad, therefore, because it did not allege that the plaintiff was a resident householder . . ..'
And as stated in Boesker v. Pickett (1882) 81 Ind. 554, 556:
'The person who asserts the right must show himself to be within the statute creating the exemption.' Our view that a special exemption such as claimed here must be asserted by the claimant at the appropriate stage of the proceedings supplemental is consistent with general subject matter treatment elsewhere. See 38 C.J.S. Garnishment § 206; 35 C.J.S. Exemptions § 130; 31 Am.Jur.2d, Exemptions § 142.
We readily acknowledge that the cases cited herein for the proposition that the exemption provided for a 'resident householder' must be asserted by specific affirmative claim involve not exemption of wages from garnishment but rather claims of exemption of real estate or specific personal property. We further acknowledge that authority exists from which one may conclude that the statutory provision for proceedings supplemental to execution (IC 1971, 34-1-44-5, Ind.Ann.Stat. § 2-4403 (Burns 1968 Repl.)) contemplates no pleadings other than the affidavit of the judgment creditor (See IC 1971, 34-1-44-8, Ind.Ann.Stat. § 2-4404 (Burns 1968 Repl.)), thereby impliedly dispensing with an affirmative written allegation by the judgment debtor claiming exemption as a resident householder. We further acknowledge that the judgment creditor as plaintiff in the garnishment action bears the burden of proof upon all the necessary averments of his complaint or affidavit including one that the property sought to be applied to the judgment debt exceeds the amount to which the judgment debtor is entitled to exempt. McKinney v. Snider (1888) 116 Ind. 160, 18 N.E. 526; Abell v. Riddle (1881) 75 Ind. 345. See also Balz v. Benninghof (1892) 5 Ind.App. 522, 32 N.E. 595.
We do not conclude from these acknowledgements, however, that the judgment creditor-garnishment plaintiff must disprove the judgment debtor's right to a specific and restricted exemption which is limited to a resident householder (even if such exemption has not been abrogated by subsequent legislation) nor that the judgment debtor is absolved from bringing to the court's attention the particular exemption which is deemed applicable in addition to or as an alternative to the exemption applicable to all wage earners.
The judgment debtor is a necessary party to the garnishment proceedings supplemental to execution. Earl v. Skiles (1884) 93 Ind. 178; Folsom v. Clark (1874) 48 Ind. 414. As such, defendant-appellant here had opportunity to make claim to the exemption here sought. She failed to prove or even suggest of record that she falls within the classification which, assuming the validity of her argument, would entitle her to a more beneficial exemption than that afforded all individuals.
The retail installment contract for purchase of an automobile executed June 11, 1968 shows Eddie S. Mims of 2402 N. Adams, Indianapolis, as purchaser but was signed by Nell E. Mims, appellant herein, as well as by Eddie Mims. The contract is insufficient to show appellant as a resident of the Adams Street address nor even that she was the wife of Eddie Mims. Even assuming that from such information it could be inferred that she was Eddie's wife and lived at the address shown for him on the contract execution date, and was a 'resident householder' on that date, it cannot be presumed that she was a resident householder on any date relevant to the garnishment proceeding from which this appeal is taken. The information contained upon the installment contract falls far short of a claim for exemption.
Following overruling of her Motion to Correct Error, Appellant filed her Motion to Proceed as a Poor Person in the prosecution of an appeal. In the affidavit attached thereto, she alleged that her entire weekly wage was 'necessary to support herself, her husband (who is no longer employed) and their three (3) minor children . . ..' To be sure, the quoted averment of the affidavit is consistent with the status of a resident householder for as stated in Adkins v. Adkins (1947), 117 Ind.App. 189, 191-192, 70 N.E.2d 750, 751:
'The word 'householder' in its ordinary and usual meaning is that such a person is the head of a family upon which the other members are dependent.'
But even assuming that the affidavit creates an inference that Mrs. Mims was at the time of its execution a resident householder, it was presented after entry of the garnishment order and after overruling of the Motion to Correct Error. It therefore came too late to be considered by the trial court as a basis for an exemption under § 2-3501(d). Haas v. Shaw (1883), 91 Ind. 384.
There is no further hint of record that appellant may have been at the time of the garnishment proceeding a resident householder.
Appellant has wholly failed to claim, except by conclusionary statements in her brief, that she is a 'resident householder' entitled to the exemptions from garnishment provided by § 2-3501(d). The record is totally devoid of evidence, or even of an allegation, that she is a resident householder. Appellant's argument with respect to possible application of § 2-3501(d) is therefore beyond the scope of the facts properly before us.
Judgment affirmed.
BUCHANAN, P. J., not participating.
ROBERTSON, P. J. (sitting by designation), concurs.
WHITE, J., dissents.
'The maximum part of the aggregate disposable earnings of an individual for any workweek which is subjected to garnishment to enforce the payment of one or more judgments against him may not exceed twenty-five per cent (25%) of his disposable earnings for that week in excess of thirty (30) times the federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Acts of 1938, U.S.C. tit. 29, section 206(a)(1), in effect at the time the earnings are payable. In the case of earnings for a pay period other than a week, the earnings shall be computed upon a multiple of the federal minimum hourly wage equivalent to thirty (30) times the federal minimum hourly wage as herein prescribed. No court may make, execute or enforce an order or process in violation of this section. Notwithstanding any exemption or other law, the maximum part of the aggregate disposable earnings of an individual subject to garnishment under this section shall be subject to garnishment except this provision shall not apply to any order of any court for the support of any person. Nor shall this provision apply to decrees awarding alimony or attorney's fees therein when the decree awarding such support, alimony or attorney's fees specifies the amount or percentage of the disposable earnings to be applied thereon.'