No. 81-256 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

MILDRED WHITE, 

Plaintiff and Appellant, 

-vsPNNUEL WHITE, 

Defendant and 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: 

For Appellant: 

Milodragovich, Dale & Dye, Missoula, Montana 

For Respondent : 

Kline & Niklas, Helena, Montana 

Submitted on Briefs: September 17, 1981 

Decided : ~25m 

Filed: Nov 2 5 19#1 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

The sole question in this appeal is whether the earnings 

of a judgment debtor for his personal 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 in December, 1980. 

Following entry of judgment, respondent Manuel White filed 

an affidavit of exemption pursuant to section 25-13-614, MCA, 

claiming that his earnings for his personal services were 

necessary for the use of his family supported in whole or in part 

by his labor and therefore were exempt from execution. Attached 

to the af f idavit of exemption was a statement indicating his net 

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 net monthly 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. 

In January, 1981, appellant Mildred White submitted a writ 

of execution for issuance by the clerk of court of Lewis and 

Clark County. She filed a supporting brief claiming that 

Montana's exemption statute has no application to an execution 

based upon a judgment for delinquent 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 writ of execution "there 

being no legal cause shown . . . why the earnings of the defen- 
dant [appellant here] for his personal services should not be 

exempt under said statute." (Bracketed identification added.) 

Appellant Mildred White has appealed from the District 

Court's order denying the issuance of a writ of execution. 

Montana's exemption statute provides in pertinent part: 

"Earnings of judgment debtor. (1) The earnings 

of the judgment debtor for his personal services 

rendered at any time within 45 days next preceding the levy of 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 in whole or in part 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, in pertinent part in the following language: 

"Head -- of family defined. The phrase 'head of a 

family1 as used in this chapter includes within 

its meaning: 

"(1) the husband and wife acting together or 

either one 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 that particular transaction. 

" (3) every person who has residing on the premises with him or her and under his or her care 

and maintenance either: 

"(a) his or her minor child or the minor child 

of his or her 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 his wife; 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 statutes whose purpose is to save the debtor a 
means of supporting his family. She points out that other 

courts have generally so held, citing Anno: 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, 16 Cal.2d 532, 106 P.2d 873; Henry v. Henry (1960), 

182 Cal.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 scrutiny to 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 this case has not been adjudicated 

in Montana. Both appellant and respondent concede this. 

Appellant seeks to persuade us to hold in her favor by 

rulings of courts of sister states either that their exemption statutes do not expressly encompass claims or judgments 

for delinquent alimony or by j udicial interpretation or 

construction of their exemption statutes to that effect . We remain unpersuaded . We recognize that alimony 

claims rest on a different basis than ordinary debts. The 

United States Supreme Court has pointed out this difference 

in this language: 

"Permanent alimony is regarded rather as a portion of the husband Is estate to which the wife 

is equitably entitled, than strictly a debt; 

alimony from time to time may be regarded as a 

portion of his current income or earnings." 

Audubon v. Shufeldt (1901), 181 U.S. 575, 578, 

21 Sect. 735, 45 L.Ed 1009. 

Be that as it may, a claim for delinquent alimony 
when reduced to judgment 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 relationship between them the same 

as any other money judgment between a plaintiff and defendant. 

In construing Montanat s exemption statute, the 

intention of the legislature is to be pursued if possible. 

Section 1-2-102, MCA. The intention of the legislature must 

first be determined from the plain meaning of the words 

used, and if interpretation of the statute can be so 

determined, the courts may not go further and apply any 

other means of interpretation. Haker v. Southwestern 

Railway Co. (1978), 176 Mont. 364, 578 P.2d 724; Montana 

Ass'n of Underwriters v. State of Montana (1977), 172 Mont. 

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), 

141 Mont. 354, 377 P.2d758; Nat'l Elec. Contractors Ass'n v. 

State Bd. of Education (1960), 137 Mont. 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 declare what 

is in terms or in substance contained therein, not to insert 

what has been omitted or omit what 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), 151 Mont. 76, 438 P.2d 660 

and cases cited therein. 

Applying the foregoing rules of statutory cons truction, we hold that Montana's exemption statute does not differentiate between different kinds or types of judgments. 

The plain language of the statute provides an exemption of 

earnings against the levy of any execution regardless of the 
nature of the underlying claim. This Court is not empowered 

to insert an exception to the exemption statute consisting 

of judgments for delinquent alimony payments. We cannot 

insert what has been omitted from the statute. We must 

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 acts by 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 will not decide issues raised for the 

first time on appeal. Northern plains v. Board of Natural 

Resources (1979) , 181 Mont. 500, 594 P.2d 297; Kearns v. McIntyre 

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

Af f irmed . 

Chief ~ustice 

Justices