### No. 81-256 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

MILDRED WHITE, Plaintiff and Appellant,

-vsPNNUELWHITE, Defendantand Respondent.

Appeal from: District Court of the First Judicial District, In and for the County of Lewis & 

### Clark, The Honorable Gordon R. Bennett, Judge presiding.

Counsel of Record: ForAppellant: Milodragovich, Dale & 

### Dye, Missoula,Montana For Respondent: 

### Kline & 

### Niklas, Helena, Montana

Submitted on Briefs: September 17, 1981 Decided: 

### ~25m

Filed: 

## Nov2

## 519#1Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

The 

### sole question in thisappeal 

### is whether the earnings of 

### a judgment debtor for hispersonal services 

### are exempt from execution on a judgment for unpaid alimony. The District Court held such earnings exempt. We affirm. On February 22, 1980, appellant Mildred White obtained a judgment for delinquent alimony payments against respondent Manuel White in the Superior Court of Spokane, Washington. This judgment was sued upon in the ~istrict Court of Lewis and Clark County, Montana in May, 1980, and reduced to judgment in the sum of $39,502.65 in the Montana Court inDecember, 1980. Following entryof judgment, respondent Manuel White filed

an affidavit of exemption pursuant 

### to section 25-13-614, MCA, claiming that his earnings for hispersonal services 

### were necessary for the use of his family supported inwhole 

### or in part by his labor and therefore 

### were exempt from execution. Attached to the affidavitof exemption 

### was a statement indicating hisnet monthly income was approximately $2,600 and an itemization of his monthly expenses necessary 

### to support his family in the 

### total amount of approximately $2,975 for 

### a netmonthly deficit of approximately $375. No issue 

### was raised in the District Court concerning the validity of any of the items claimed as necessary for the support of his family. InJanuary, 1981, appellant Mildred White submitted a 

### writ of execution for issuance by the clerkof court of Lewis and Clark County. She filed a supporting brief claiming that Montana's exemption statutehas no application 

### to an execution based upon a judgment fordelinquent alimony payments and therefore appellant's claim of exemption of his earnings was invalid. On May 18, 1981, the District Court ordered the clerk of court to deny appellant's request for a 

### writof execution "there being no legal cause shown

# ..

# .why the earnings of the defen-dant [appellanthere] forhispersonal services should not be exempt under said statute." (Bracketed identificationadded.) Appellant Mildred White has appealed from the District Court's order denying the issuance of a 

### writof execution. Montana's exemption statute provides in pertinent part: "Earnings of judgment debtor. (1)The earnings of the judgment debtor forhispersonal services rendered atany 

### time within 45 days next preceding the levyof execution 

### or attachment, when it appears by the debtor's affidavit

### or otherwise that such earnings 

### are necessary for the use of his family supported inwhole 

### or inpart by his labor, are exempt

# . .

# . "(2)The words 'his family', as used in this section, are 

### to be construed with the words

head of family'

## , as used in 70-32-102". Section 25-13-614, MCA. "Head of family" is defined in section 70-32-102, MCA, inpertinent part in the following language: "Head of familydefined. The phrase 'head of a



### -- family1

### as used in thischapter includes within 

### itsmeaning: "(1)the husband and wife acting together 

### or eitherone of them if they do not join in the particular transaction. 

### In any given transaction which requires action by the head of a family, the spouse who undertakes the transaction shall be deemed head of the family in regard to thatparticular transaction.



### "(3)everyperson who has residing on the premi

### ses with him 

### or her and under his

### or her 

### care and maintenance either: "(a)hisorher minor child 

### or the minor child of his orher wife 

### or husband or former wife 

### or husband

# . .." Appellant Mildred White contends that Montana'

### s exemption statute has no application 

### to a claim for delinquent alimony. She argues that the basis of alimony is the natural obligation of a husband to support hiswife; that it is not a debt within the meaning of exemption statutes; that it does not create a debtor-creditor relationship between husband and wife; and therefore it 

### is beyond the purpose and scope of exemption statuteswhose purpose 

### is to save the debtor ameans of supporting his family. She points out that other courts have generally 

### so held, citingAnno: Enforcement of claim for alimony 

### etc. against exemptions, 54 ALR2d 1422; Bruton v. Tearle (1936), 7 Cal.2d 48, 59 P.2d 953; Yager v. Yager (1936) 7 Cal.2d 213, 60 P.2d 422; Rankins 

### v. Rankins (1942), 52 Cal.2d 231, 126 P.2d 125; Ex parte Smallbone (19401, 16Cal.2d 532, 106 P.2d 873; Henry v. Henry (1960), 182Cal.App.2d 707, 6 Cal.Rptr. 418; ~ickel v. Bickel

She goes on to argue that the monthly expenses listed by respondent 

### as necessary for the support of his family deserve scrutinyto determine their necessity within the meaning of Montana's exemption statute. Finally, she points out that the result of upholding respondent's claim of exemption is to favor second and third wives and children at the expense of her prior claim--an indefensible 

### social policy.The issue posed in thiscase has not been adjudicated inMontana. Both appellant and respondent concede this. Appellant seeks 

### to persuade us 

### to hold inher favor by rulings of courts of 

### sister states either that their exemption statutes do not expressly encompass 

### claims 

### or judgments fordelinquent alimony orby judicial interpretation 

### or construction of their exemption statutes to that effect

# . We remain unpersuaded

# . We recognize that alimony claims 

### rest on 

### a differentbasis than ordinarydebts. The United States Supreme Court has pointed out thisdifference inthis language: "Permanent alimony 

### is regarded rather as a portion of the husband Isestate to which the wife is equitablyentitled, than strictlya debt; alimony from time to timemay be regarded as a portion of his current income 

### or earnings." Audubon v. Shufeldt (1901), 181U.S. 575, 578, 21Sect. 

### 735, 45 L.Ed 1009. Be that 

### as it may, 

### a claim fordelinquent alimonywhen reduced tojudgment becomes merged in the judgment and 

### loses its underlying character. The judgment 

### creates a debt owed by the former husband to the ex-wife. The judgment 

### creates 

### a debtor-creditor relationshipbetween them the 

### same

as any other money judgment between 

### a plaintiff and defendant. In construingMontanat

### s exemption statute, the intention of the legislature is to be pursued if possible. Section 1-2-102, MCA. The intention of the legislaturemust firstbe determined from the plainmeaning of the words used, and if interpretation of the statutecan be so determined, the courtsmay not go further and apply any othermeans of interpretation. Haker v. Southwestern Railway Co. (1978), 176Mont. 364, 578 P.2d 724; Montana Ass'n of Underwriters v. State of Montana (1977), 172Mont. 211, 563 P.2d 577. Where the language of a statute 

### is plain, unambiguous, direct and certain there 

### is nothing left for the court 

### to construe. Doull v. Wohlschlager (1963), 141Mont. 354, 377 P.2d758; Nat'l Elec. Contractors Ass'n v. StateBd. of Education (1960), 137Mont. 382, 352 P.2d 258; Vaughn & Ragsdale Co. 

### v. St. Bd. of Equalization (1939)

## , 109 Mont. 52, 96 P.2d 420. The function of the Court in construing a statute is simply 

### to ascertain and declarewhat is in 

### terms or in substance contained therein, not to insert what has been omitted 

### or omitwhat has been inserted. Section 1-2-101, MCA. In short, it is simply the duty of the Supreme Court 

### to construe the 

### law as it finds it. Dunphy 

### v. Anaconda Co. (1968), 151Mont. 76, 438 P.2d 660 and 

### cases cited therein. Applying the foregoing rules of statutoryconstruction, 

### we hold that Montana's exemption statutedoes not differentiatebetween different kinds 

### or types of judgments. The plain language of the statuteprovides an exemption of earnings against the levy of any execution regardless of thenature of the underlying 

### claim. This Court 

### is not empowered to insert an exception to the exemption statuteconsisting of judgments fordelinquent alimony payments. We cannot insertwhat has been omitted from the statute. Wemust construe the statute 

### as we find it. If the result contravenes enlightened public policy, it 

### is for the legislature and not the courts to amend the statute. It is not the function of the courts

### to improve legislative actsby judicial amendment. We do not reach the claim of appellant that some of the individual expense items in respondent's claim of exemption may not be necessary for the support of his family. This issue 

### was not raised by appellant in the District Court. This Court willnot decide issues raised for the first

### timeon appeal. Northern plains v. Board of Natural Resources (1979)

## , 181Mont. 500, 594 P.2d 297; Kearns 

### v. McIntyre Const. Co. (1977)r 173Mont. 239, 567 P.2d 433. Affirmed

# .

Chief ~ustice

Justices