Summary
holding that the trial court improperly "assumed the obligation of finding a way to insure that the court's judgment would be paid" by ordering the debtor to find a second job instead of "complying with the legislative directives"
Summary of this case from Marianas Eye Inst. v. MosesOpinion
March 13, 1972.
PRESENT: Roberts, C.J., Paolino, Powers, Joslin and Kelleher, JJ.
SUPPLEMENTARY PROCEEDINGS. Satisfaction of Judgment. Order Fixing Payments. Statutory Provisions. Court calls attention to provisions of pertinent statute and holds that trial justice in supplementary proceeding lacked authority to direct defendant to get another job and thereby to obtain funds to pay $8 per week on account of unsatisfied judgment. G.L. 1956 (1969 Reenactment) § 9-28-5.
SUPPLEMENTARY PROCEEDINGS, before Supreme Court on appeal of defendant from order entered by Kiely, J., Superior Court, heard and appeal sustained, judgment reversed, and case remitted to Superior Court for further proceedings.
Higgins, Cavanagh Cooney, Gerald C. DeMaria, for plaintiffs.
Berberian Tanenbaum, Aram K. Berberian, for defendants.
The plaintiffs obtained a judgment of $10,355.12 in the Superior Court against the defendants, George E. and Edmund Jemery, in a case which arose out of an automobile collision. The plaintiffs commenced supplementary proceedings under G.L. 1956 (1969 Reenactment) § 9-28-3 when the defendants failed to pay that judgment and an execution thereon was returned unsatisfied. The defendant, George E. Jemery, hereinafter referred to as the "debtor," appeared before a Superior Court justice and pursuant to § 9-28-4 an inquiry was then made into his circumstances, his income, and his ability to pay the judgment. At the conclusion of that hearing an order was entered directing him to pay the plaintiffs $8 per week until the judgment was fully paid. The debtor was dissatisfied with that order and appealed.
At the hearing with respect to the debtor's circumstances it appeared that he was regularly employed as a machinist; that this was his only employment; that his weekly take-home pay was $96; that he lived with his wife and daughter; that his wife was unemployed; and that he had no assets such as stocks, bonds or a bank account. It further appeared that it cost him an average of between $105 and $115 each week for food, rent, heat, gas, electricity, cleaning, telephone, clothing, medical services, cigarettes, beer, and gasoline for and payment on account of his wife's automobile.
The record contains no explanation of how the debtor manages such deficit financing.
Having heard that evidence — and there was no other — it became the trial justice's duty to determine whether the debtor was able to pay the judgment in full or by partial payments. As a precedent to such an order, however, the language of § 9-28-5 required the trial justice to allow the debtor "* * * out of his income a reasonable sum for * * * the support of himself and family * * *." It also provided that the only source to which he might look in determining what payments should be made on account of the judgment debt was so much of the debtor's income as exceeded that allowance.
Here the trial justice, instead of complying with the legislative directives, assumed the obligation of finding a way to insure that the court's judgment would be paid, and he directed the debtor to get another job and thereby obtain the funds with which to make the $8 weekly payment. In so doing he exceeded his authority. Hillside Metal Products, Inc. v. Rowland, 79 R.I. 112, 84 A.2d 534 (1951).
The appeal of the defendant George E. Jemery is sustained, the judgment appealed from is reversed, and the case is remitted to the Superior Court for further proceedings.