Equitable distribution orders often direct the payment of money from one former spouse to the other. And normally money judgments are entirely enforceable during an appeal, unless the appellant gets a supersedeas bond. So you’d think that equitable distribution orders, at least the parts directing monetary payments, would be enforceable during an appeal like other money judgments.
If you thought that, you’d be wrong, as the Court of Appeals reminded attorneys this week in Crowell v. Crowell.
In Crowell, the trial court entered an equitable distribution order, which called for periodic payments by the wife. The wife appeals. During the appeal, the husband learns that the wife is selling off and hiding assets that could be used to satisfy the judgment. He then moves for an injunction in the trial court, seeking a freeze on her activities while the appeal is pending. Motion granted, and the wife is enjoined.
Did the trial court have jurisdiction to enjoin the wife and preserve the status quo, while the appeal was pending?
Nope, says the Court of Appeals. Section 1-294 stays trial court proceedings that involve an issue embraced by a prior order on appeal. Clearly, the freezing order depended on the validity of the equitable distribution order that was on appeal.
Then again, we don’t normally worry about section 1-294 when a money judgment is entered. Money judgments are fully executable after a notice of appeal is filed, unless the appellant secures a supersedeas bond through section 1-298.
Following an earlier precedent, Romulus v. Romulus, the Court explained that a “a trial court theoretically retains jurisdiction to enter orders securing the enforcement of an equitable distribution judgment while an appeal is pending.” And an equitable distribution order is “theoretically” a judgment directing the payment of money, implicating section 1-298. So far so good.
The opinion then darts sharply back to section 1-294. As in Romulus, the equitable distribution order has a collateral effect on the wife’s real property, not just her money. So too does the freezing order affect her real property. The Crowell court seemed to reason that the 1-294 stay trumps the appellee’s ability to execute on a money judgment under section 1-298.
Taking a step back, it’s unclear whether the Crowell panel sought to break new ground here or just faithfully follow Romulus.
Taking Crowell as it is, what could the husband-appellee have done to protect against his wife’s dissipation of assets during the appeal?
At least two solutions come to mind.
First, the husband could have sought an injunction directly from the Court of Appeals to preserve the status quo. As Civil Rule 62(f) makes clear, nothing stops an appellate court from issuing its own injunction after an appeal is taken.
Second, the husband could have moved the Court of Appeals for a limited remand to the trial court to act on the husband’s motion for an injunction. Assuming it was granted, the wife could then have appealed that order, or sought writ-relief from it in the Court of Appeals.
Either path would have respected the jurisdictional boundary between the trial and appellate divisions.
As with many family law cases, this was the third appeal in the long-running saga. Maybe the fourth appeal will give the litigants the chance to try one of these other approaches.
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