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01-1041 Condor Energy Inc. v. Estate of Richard A. Malone, et al.

By: dmc-admin//March 25, 2002//

01-1041 Condor Energy Inc. v. Estate of Richard A. Malone, et al.

By: dmc-admin//March 25, 2002//

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Condor Energy Inc. (Condor) appeals from the circuit court judgment granting it $2,892.25, plus interest, from Janet Malone, but denying Condor the additional recovery it had sought, following the court’s consideration of cross-motions for summary judgment and declaratory relief in a garnishment action to collect on a judgment against Janet’s husband, Richard A. Malone, rendered in Kansas and docketed in Milwaukee County. The circuit court concluded that only ten percent of the underlying Kansas debt was a marital property debt or a family purpose obligation, and that Condor was not entitled to garnish the escrow account established to contain the “net distributable proceeds from the sale of [Richard’s] Estate’s undivided one-half interest in the [Malone homestead]” because “the entirety of the funds remaining in the … account … is fully exempt” under the homestead exemption statute, Wis. Stat. sec. 815.20.

Condor contends that the entire amount of the Kansas judgment is a debt that was incurred in the interest of the marriage between Richard and Janet. It argues, therefore, that it has the right to proceed against all of the Malones’ marital property to satisfy the Kansas judgment. Condor also argues that a judgment debtor who escrows funds to cover a debt is not able to claim a homestead exemption regarding the escrowed funds. Finally, Condor argues that even if the homestead exemption is available, the statutory two-year period allowed for procurement of another homestead with the proceeds from the sale of the homestead for which the exemption is being claimed should not be extended due to pending litigation.

We conclude that the entire amount of the foreign judgment is a debt that was incurred in the interest of marriage, and that it may be satisfied from the proceeds from the sale of the Malone homestead. Because the proceeds from the sale of the homestead are sufficient to satisfy the foreign judgment even without application of the homestead exemption, we decline to address whether the homestead exemption is available and, if so, whether litigation tolls the statutory two-year reinvestment period.

Accordingly, we reverse and remand with instructions.

Not recommended for publication in the official reports.

Dist I, Milwaukee County, Malmstadt, J., Schudson, J.

Attorneys:

For Appellant: John R. Maynard, Milwaukee

For Respondent: Patricia M. Matusiak, Milwaukee

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