NO. 91-394 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

IN RE THE MARRIAGE OF KENNETH JONES, Petitioner, and RITA ANN "GOBERT" JONES,Respondent,
-vsSTEVEN G. POINDEXTER and INSURED TITLES, INC., a Montana corporation, Appellants.

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable John S. Henson, Judgepresiding.

COUNSEL OF RECORD: For Appellant: JohnK. Tabaracci;SullivanandTabaracci,Missou Montana For Respondent: Paul Neal Cooley; Skelton and Cooley, Missoula,

- Montana

enneth Jones, Pro Se,Kamia, Idaho


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# -9199 Submitted: April 21, 1992Chief JusticeJ. A. Turnage delivered the Opinion of the Court. StevenPoindexterand InsuredTitles,Inc., appeal anorderof the District Court for the Fourth Judicial District, Missoula County, allowing Rita Ann ggGobertgg Jonesto execute judgment liens
on certain real property in Florence,Montana. The property was sold toPoindexterby KennethJones,Rita's former husband,andhis second wife and their daughters. We reverse. We restate the issue as whether the order entered by the District Court relates toproperty sold to Poindexterby Ken Jones and is based on judgment liens existing when Poindexterpurchased the property. Since the marriage of Rita and Ken Jones was dissolved in January 1985,Ken has been held in contemptof court several times for refusing to pay maintenance and child support. He unsuccessfully challenged the originalproperty settlement. In re Marriage of Jones (1987), 229 Mont. 128, 745 P.2d 350. Ken purchased real property located in Florence, Montana, in 1986. InMay 1987,he executed a declaration of homestead on the property pursuant to g 70-32-105,MCA. InJuly 1987,he conveyed the property by quitclaim deed to himself (1/2), his second wife

(1/6), and their two daughters (1/6 each), as tenants in common. His second wife filed a declaration of homestead in January 1988. Also in 1988,Ken filed for bankruptcy. As a result of that filing, in July 1988 a dissolution decree property settlementprovision that he pay certain suns to Rita was redesignated as a maintenance obligation. Ken unsuccessfully appealed a subsequent order that he pay Rita maintenance and back child support. In re Marriage ofJones (lggO), 242Mont. 119, 788 P.2d 1351. While that appeal was pending, on January 5, 1990, Ken and his second wife

(acting forherself and as guardian for their daughters) conveyed their Florence, Montana property to Poindexter. Insured Titles acted as the title company. Rita states that shedid not knowof the saleof the Florence, Montana property until after it occurred. Shewas able to execute upon $15,735.53, or half, of the proceeds of the sale, which Insured Titleswithheld from Ken for the purpose of paying Rita's past-due maintenance and child support. Execution on those proceeds is not a subject of this appeal. This left $2,113.53 due
on the underlying judgment. On July 11, 1990, Rita moved for an order of sale of the Florence, Montana property so that she could recover the maintenance remaining due her on the judgments upon which the earlier executionwashad and attorney fees shewas awarded under a January 24, 1989 order. The District Court ordered Poindexter and Insured Titles to showcausewhy Rita should not be allowed to execute upon the property. After a hearing, the court determined that Ken's homestead exemption was abandoned when he sold his interest in the propertyto Poindexter. 

### It reasoned thatbecause Rita's judgment lienshad
never been removed or extinguished, those liens attached and encumbered the property at the time the homestead exemption was abandoned and thus theproperty was conveyed to Poindexter subject to the liensand to the court's execution order. InJune 1991, the court ordered that Rita may execute on the property in the amount of $8,749.02 plus interest. This included $2,113.53 remaining due from the earlier execution, plus interest on that amount;maintenance from May to September 1990 plus interest (those past-due payments having been reduced to a judgment in October 1990 past-due maintenance from October 1990 to May 1991. The stated that the attorney fees awarded under the January 24 order had not attached to the property. ) ; and court



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Ritahas already executed onKen's half of theproceeds of the sale of the Florence property. Prior to the entry of any of the judgments upon which execution is sought, Ken conveyed a total of half of his interest in that property to his second wife and two daughters. As indicated in the order from which appeal is taken, Poindexter purchased theproperty from the four tenants in common. Absent a setting aside of the conveyances from Ken to his second wife and daughters,we conclude that judgment liens against Ken's property would not support an execution against the interests of the second wife and daughters and therefore do not supportexecutionagainstthe interest Poindexter purchased fromthesecond wife and daughters. There is another problem with allowing sale of the property for execution on the District Court judgments formaintenance due from May to September 1990 and from October 1990 to May 1991. Those maintenance payments became due and judgments were entered after Ken sold the realproperty in Florence to Poindexter. Under 5 70-21-306, MCA, a purchaser takes property subject to prior judgments filed and recorded as provided in 

### 5 7-4-2613, MCA. However, no authority has been cited that a purchaser takes property subject to subsequent judgments against the seller. We conclude that executionmay not be had upon the Florenceproperty for judgments entered against Ken after Poindexter purchased the property. Because of our resolution of this restated issue,we do not reach the other issues raised. Reversed.We 

### concur: