# FILED December 4, 2000 Cecil Crowson, Jr. Appellate Court Clerk IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE

IN RE: ) FOR PUBLICATION LENORE BERRY ROSS STOREY, ) ) Filed: Decem

ber 4, 1995 Debtor, ) ) Certified Question of Law v. ) from the United States ) Bankruptcy Court for the BRADFORD FURNITURE CO., ) Middle District of Tennessee INC., ) ) Case No. 93-08973-KL3-7 Plaintiff, ) ) No. 01S01-9409-OT -00112 v. ) ) Hon. Keith M. L

undin LENORE BERRY ROSS STOREY ) United States Bankruptcy Judge and ROBERT H. WALDSCHMIDT, ) TRUSTEE, ) ) Defendants, ) ) ROBERT H. WALDSCHMIDT, ) TRUSTEE, ) ) Counter-Plaintiff, ) ) v. ) ) BRADFORD FURNITURE CO., ) INC., ) ) Counter-Defenda

nt )
For the Debtor : For the Trustee : Steven L. Lef

kovitz Robert H. Wal dschmidt Nashville, TN Nashville, TN

O P I N I O N1 "The Supreme Court may, at its discretion, answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a District Court of the United

States in Tennesse

e, or a United Stat

es Bankruptcy

Court in Tennessee. This rule may be invoked when the certify ing court determines that, in a proceeding before it, there are questions of law of this state which will be determinative of the cause and as to which it appears to the certifying c ourt there is no controlling precedent in the decisions of the Supreme Court of Tennessee." Sup. Ct. R. 23, § 1. 2 WHITE, J. I. QUESTION CERTIFIED Pursuant to Rule 23 of

the Tennessee Supr

eme Court Rules, 1 we have accepted a question certified to us by the United States Bankruptcy Court for the Middle Dist

rict of Tennessee . The bankruptcy court has asked: Which of the follo

wing is the correc

t interpretation of Tenn. Code Ann. § 26-2-111(1)(E): (1) Once asserte

d in any judicia

l proceeding, the e

xemption in alimony desc

ribed in Tenn. Code

Ann. § 26-2-111(1)(

E) is effective with r

espect to all subseque

nt executions, seiz

ures or attachments of

alimony; or (2) The exemption in alimony descri bed in Tenn. Code Ann. § 26-2-111(1)(E) is effective only if claimed in each judicial proceeding in which execution, seizur e or attachme

nt of alimony is so

ught.
For the reasons expl

ained below, we conclude that the ali mony exemption set f

orth in Tennessee C

ode Annotated Sect

ion 26-2-111(1)(E)

is effective only

if claimed in e

ach judicial proc

eeding in which exec

ution, seizure, or atta

chment of alim

ony is sought.

II. FACTS This dispute concer

ns whether an alim

ony exemptio

n filed by the debtor in the chance

ry court exem

pts the alimony

proceeds from

execution in the bankruptcy court. On February 14, 1991, the debtor divorced Carl3

Storey and wa

s awarded $2,500 pe

r month alim

ony in futuro. O

n appeal, the alimony

award was m

odified to $2,500 per m

onth rehabilitative a

limony in solido for a perio d of thirty-six months. Storey v. Storey , 835 S.W.2d 593, 597 (Tenn. App.), perm . to appeal denied , (Tenn. 1992).

Prior to the divorce , the debtor purcha sed furniture on cre

dit from Bradford Furnitur

e Company.

When the debtor f

ailed to make th

e payments, Bradford sued her in Davidson County Chancery C ourt to collect the debt. In Novem

ber, 1991, Bradf

ord Furniture Com

pany obtained a judgment agai

nst the debtor in the am

ount of $33,117.83. A

pproximately one year later

on November 20,

1992, the furniture

company se

rved a garnishment on C arl Storey, who was delinquent i

n his alimony

payments, in order to collect t

he judgment obta

ined against the debtor

. On January 8 , 1993, the debtor file

d a claim of ex

emption in the cha

ncery court to h

alt Bradford's garni shment pursuant t o Tennessee Code A

nnotated Section 26- 2-111(1)(E). Subsequently, in November, 1993, the debtor filed a voluntary Chapter 7 bankruptcy

petition in the Unite

d States Bankruptcy

Court for the Middle District of

Tennessee. Tw

o days later, Carl Storey pai d $10,000 into an escrow account maintained by the debtor's divorce lawyer to resolve a pending contempt p

roceeding in the cha

ncery court.
On January 24, 1994, the debtor filed documents in the bankruptcy court claiming an exemption for past, future, an

d escrowed alim

ony pursuant to Tennessee Code Annotated Section 26-2-111(1)(E). Bradford Furniture Company and the bankr uptcy trustee ti

mely obje cted to the4

claimed exem

ption. Bradford the

n filed an adversar

y proceeding in th

e bankruptcy court

to determine th

e validity of its prebankruptcy ga rnishment lien on the alimo

ny owed the debto

r. The trustee c

ounter-claime

d to avoid Bradford's lien.
On September 29, 1994, the bankruptcy court determined that Bradford held a val

id lien up to the am

ount of its claim

against all unpaid alimony due the debtor through Feb ruary 7, 1993,

thirty days after the debtor asserted the exemption in chancery court. See Tenn. Code Ann. § 26-2-111(1) (E) ( 1990 Supp.). The b ankruptcy court also subjected the alimony hel

d in escrow to Brad

ford's lien because more than $10, 000 of alimony wa

s due and unpaid before February 7, 1 993. However, the bankruptcy court declined to determine whether the debtor or the trustee was entitled to the a

limony acc

ruing between Febr

uary 7, 1993 and February 23, 1994 (thirty days after the debtor c laimed the alim

ony exemption in the b ankruptcy proce eding). That issue , controlled by Tennessee law,

is before us as a ce

rtified question under

Rule 23 of the Tennessee Suprem

e Court Rules.

III. DISCUSSION Under the Bankrupt

cy Code, a deb

tor may cl

aim federal or state exemptions unless

the state has chosen to opt-out of the fede ral exemption scheme. 11 U.S.C. § 522(b)(1)(1993). With the enactm ent of Tennessee Code Annotated Sec

tion 26-2-112 in 1980, T

ennessee becam

e one of several states to c

reate its own sche

me of exem

ptions opting out of the5

federal schem

e. Tenn. Code A

nn. § 26-2-112 (1980 Re

pl.). Once "the individual state has opt

ed-out of the feder

al scheme, th

e only exem

ptions available to the deb tor are those created by the state. In re Lucas , 924 F.2d 597, 599 n.4 (6th Cir.

1991); see also In re Hackler , 35 B.R. 326, 327 n. 1 (Bankr. E.D.

Tenn. 1983); In re Norton , 30 B.R. 712, 713 (Bankr. E.D. Tenn. 1983). Thu s, we are calle d upon to interpret a po

rtion of the exemption statute passed by our legislature to preempt the use of federal bankruptcy exem

ptions by Tennessee citizens in Ten nessee courts.
In interpreting legi slative provisions, ou r role is "to ascer

tain and give effect to the legis

lative intent without

unduly restrict

ing or expanding a statute's coverage beyond its intended scope." Roseman v. Roseman , 890 S.W.2d 27, 29 (

Tenn. 1994); Lyons v. Rasar , 872 S.W.2d 895 , 897 (Tenn. 1994). If the inten

t can be determ

ined from the pl

ain language of the provision read in the c

ontext of the entire statutory schem e, we must conclude our inqu iry there. See Carson Creek Va cation Resorts, I

nc. v. Department o

f Revenue , 865 S.W.2d 1, 2 (Tenn. 1993); Wilson v. Johnson County , 879 S.W.2d 807 , 809 (Tenn. 1994) ; National Gas Distributors, Inc. v. State , 804 S.W.2d 66,

67 (Tenn. 1991). If the language is a mbiguous and does not yield a clear interpretation, we may consult the legislative history for additional int erpretive guidance. See Carr v. Ford , 833 S.W.2d 68, 69- 70 (Tenn. 1992); Baker v. Promark Products West, Inc. , 692 S.W.2d 844 , 847 (Tenn. 1985).
The relevant provi sion which we m ust interpret constit

utes a section2 The amendment's house sponsor explained that its purpose was "to correct, well to

make an addition. We took out more of the federal bankruptcy law than we intended to. This would replace a portion of that." Debate on House Bill 1232, April 17, 1980 (statement of Rep. Wood).
3 The federal alimony exemption provides that a debtor may exempt "alimony, support, or separate maintenance, to the extent reasonably necessary for the support of the debtor and 6 of the Personal Pr

operty Owner

's Rights and Garni shment Act of 1 978 codified at Tennes see Code Annotated Section 26-2-101 et seq . The original statute allowed a debtor to exempt certain items of personal property from

process, including a

ttachment, e

xecution, and garnis

hment for the purpose of "secur [ing] the poor in the possession and use of the means necessary for their subsistence." Jone s v. Wil liams , 32 Tenn. 105, 106 (Tenn. 1852). T

hus, a debtor was a

llowed to exem

pt personal property

to the ag grega te val ue of f our th ousa nd do llars ($4,0 00) an d pers onal items such as clothing, fa

mily portra

its and pictures, the

family Bi

ble and school books, and state pensi

on funds. Tenn. Co

de Ann. § 26-2-102 - - -104 (1980 Repl.). Unlike the federal bankruptcy provisions, however, the 1978 Act did not include an alim

ony exemptio

n. Two year

s later, an alim

ony exemption was a

dded with little expla

nation. 2

With the ame

ndment, the sta

tute provides that: [T]he followi

ng shall be exemp

t from executi

on, seizure or attachment in t

he hands or possession of any person who is

a bona fide citizen permanently residing in Tennessee: (1) The debtor's right to receive:

. . . (E) Alimony

to the extent that pay

ment becom

es due more than thirt

y (30) days a

fter the debtor asserts a claim t o such exemption in any judicial proceeding

. . . . Tenn. Code. Ann. § 26-2-111(1)(E)(1995 Supp.)(emphasis added). 3any dependent of the debtor." 11 U.S.C. § 522 (d)(10)(D)(1993). 7 Based on this language , the debtor contend s that she is entitled t

o exempt all the alimony that was due m ore than thirty days after she claimed the exemption in the chancery court litigation with Bradford Furniture Company. The debtor argues that the statute's reference to "any judicial proceeding" is clea

r and unambiguous,

does not restrict the

scope of the exemption, and

applies universally . Thus, an exem ption claimed pur

suant to the statute binds all

creditors in all subsequent judicial pr oceedings forever.
Conversely, th

e trustee argues th

at, under the statut

e, the exempt

ion applies only to the cred itors and to the pro ceeding in which it i s filed. While the debtor may claim exem ptions in each and every judicial proceeding, the tr

ustee contests the bla

nket application of th

e exemption to claims that arise in other distinct judicial proceedings. Thus, he argues that the alimony exemption became ef fective as to him and the bankruptcy proceeding thirty

days after the

debtor claime

d the exemption in

the bankruptcy case.
The bankruptcy court fou nd the statute to b e ambiguous with two possible interpreta

tions: [I]t could be re

ad that the first cl

aim of exem

ption in alimony "in any judicial proceeding" is good against the world, forever - - it precludes all su

bsequent efforts at

execution, seizur

e or attachment; or

, it could be read th

at a claim of e

xemption in alimony pre

cludes only the ex

ecution, seizure o

r attachment with respect to wh

ich the exempti

on is asserted. While both interpr

etations are possible , we conclude that the purpose and8

intent of the legisla

tion is accomplis

hed only if the pr

ovision is read to provide an exem

ption in the particula

r proceedings in whi

ch it is claime

d.

To read the statute

as a permanen

t, all encompa

ssing exemption goo

d against the world w

ould produce unwieldy

results. Such a r

eading would exempt claims before they existed. It would exem pt claims without notice to the creditors. I

t would paradoxical

ly create an e

xemption which w

ould outlive the debtor.
The statutory scheme in whic h the alimony

exemption is loca

ted is one that deals with a

variety of cr

editors' rem

edies, including att

achment, garnishment, e

xecution, and bankru

ptcy. Viewe

d in this context the indefinite phrase " any judicial pr oceeding" applies to n

umerous circumstance s. Were the ex emption universa

l and permanent

in application, an exemption fil

ed in a general sess

ions court eviction ca

se would apply to bankruptcy proce

edings filed by the

same debtor a d

ecade later or to assets identifiable as ali

mony in the e state at the debtor' s death. The fra mework in which this provision ap

pears suggests to us tha

t such a result was n

ot intended.

Likewise, the la

nguage of the statute

supports our conclusion. The "[w]ord 'any ' has a diversity of meaning and m

ay be emplo

yed to indicate 'all' or 'every' as well as 'som e' or 'one' and it

s meaning in a give

n statute depends upon the context and the subject matter of the statute." Black's Law Dictionary

94 (6th ed. 1990). "It is often synonymous with 'either',9

'every', or 'all'." Id .; see also Roddy Mfg. Co. v. Olsen , 661 S.W.2d 868 , 871 (Tenn. 1983)(the word "any" in a statute is synonymous with the word "all"); Employer

s Liability As sur. Corp. v. Fa rquharson , 188 S.W.2d 965 , 969 (Tenn. 1945)(" We take it that any and every . . . mean all
. . . . Any means one or more of a group. Every means the entir e group without exception.").
The phrase "judic

ial proceeding" has b

een defined as: Any proceeding wherein judi cial action is invo ked and taken. Any proceeding

to obtain such rem

edy as the law allows. Any step taken in a court of justice in the pr osecution or defense

of an action. A general term for proceedings relating to, practiced in, or proceeding f

rom, a court o

f justice; or the c

ourse prescribed to be tak

en in various cases f

or the determi

nation of a controversy or

for legal redress

or relief. A pr

oceeding in a legally constituted court. A proceeding wherein there are parties, who have

opportunity to be he

ard, and wherei

n the tribunal proceeds e

ither to a determ

ination of facts upon evidence or of law

upon proved to conceded facts. Black's Law Dictionary

at 849 (citations omitted).

We note the im

precision of that def

inition and clarify

by way of example. Ea

ch cause of action w

ould constitute a judi

cial proceeding, b

ut each attempt to execute by vari ous methods on one judg ment would not. Therefore, in a

given case, a file

d exemption woul

d protect the debtor f

or each and every exception attempted so long as it was filed in compliance with the exception statute.
The language of the

statute, coupled w

ith the context of the provision, and the sparse legisl

ative history co

nvince us that "any

judicial proceed

ing"10

means a judic

ial proceeding in wh

ich the exempti

on is asserted. Th

e alimony exe

mption is effec

tive, therefore , only in the ju dicial proceeding in which it is filed. Were we to fi nd otherwise and ca

rry that finding

to its logical conclusion, o

ur statute would gra

nt an indefinite exem

ption in separate and distinc

t judicial procee

dings, an exemp

tion that could outlive the debtor. We do not believe that the alimony exe

mption was inten

ded to be effective for

ever against the ent

ire world, com

mencing from

the time the debtor first claimed the exemption in a judicial proceeding, extending at that moment to even nonexisten t debts, and endurin g indefinitely.
Rather, we hold that the debtor must claim the exemption in each judicial proceed

ing in which the debtor

wants protection.This interpretati on is consistent with the

general principle that a "claim o f exemption unde

r one execution may

not and usually doe s not dispense with the necessity of the claim under other different executions where the different executions were issued on different judgments." 35 C.J.S. Exemptions § 130 (1960); see also 31 Am. Jur. § 308 (1989). This int erpretation does not

deprive the diligent debtor of any

protection, but it does establish a me thod whereby claimed exemptions will be known to the parties and judges in the particular judicial proceeding consistent with ot her similar provisions in our statutes. See Tenn. Code Ann. § 26-2-114 (1980 Repl.)(exemptions exercised after debtor becomes

judgment debtor

and having no applicati

on to executions filed prior to exemptions).

IV. CONCLUSION11 We hold that the alimony exemption of Tennessee Code Annotated Section 26-2-111(1)(E) is effective only if claimed in each judicial proceeding in which execution, seizur e, or attachm

ent of alimony

is sought.

The Clerk will tr

ansmit this opinion in accordance wit h Rule 23, Section 8 of the Rules of the Suprem e Court. The cost

s in this Court will be taxed equally between the debtor and the trustee.

__________________________________ __ Penny J. White, Justice

CONCUR: Anderson, C.J,

Drowota, Reid,

Birch, JJ.