Lammers v. Lammers

• Decision Date: 04 October 1994
• Docket Number: No. WD,WD
• Citation: 884 S.W.2d 389
• Parties: Randall E. LAMMERS, Appellant, v. Margaret S. LAMMERS, Respondent. 48727.
• Court: Missouri Court of Appeals

Page 389

884 S.W.2d 389

Randall E. LAMMERS, Appellant, v. Margaret S. LAMMERS, Respondent.

No. WD 48727.

Missouri Court of Appeals,

Western District.

Oct. 4, 1994.

Peter Michael Schloss, Kansas City, for appellant.

Laurie L. Vaskov, North Kansas City, for respondent.

Before HANNA, P.J., and BRECKENRIDGE and ELLIS, JJ.

BRECKENRIDGE, Judge.

Randall E. Lammers appeals the trial court's order reviving a judgment for alimony in gross, attorneys' fees and costs, which had been entered against him and in favor of his former wife, Margaret Lammers, in their underlying divorce decree.

Randall raises two points on appeal. First, he contends that the trial court erred in entering its current order of revival because the judgment had expired by operation of law. Second, Randall asserts the trial court improperly calculated interest owed on the judgment. The judgment is affirmed in part, reversed in part and modified, pursuant to Rule 84.14.

On June 19, 1973, Randall Lammers and his former wife, Margaret Lammers, were legally divorced. The divorce decree ordered Randall to pay Margaret $2,000 alimony in gross and $200 in attorneys' fees. Nearly ten years later, on June 16, 1983, Margaret filed an Application for Scire Facias to Revive Judgment, stating that the judgment of June 19, 1973 had not been satisfied and that it was now owing in the amount of $3,819.49, including interest. At the time she filed her application, Margaret filed an affidavit stating that Randall did not reside in the state of Missouri and his whereabouts were unknown.

A Writ of Scire Facias to Revive Lien of Judgment was issued by the Clerk of the Court on June 16, 1983 and was mailed for service in Clay County, where Randall was last known to reside. The Clay County Sheriff received the writ three days later and proceeded to serve same. On June 28, 1983, the Sheriff made a return of service on the executed writ to the Circuit Clerk which indicated that Margaret, rather than Randall, had been served. Due to this error, the writ was directed back to the Sheriff. On July 7, 1983, the Circuit Clerk received a second return on the writ, this time showing service non est on Randall.

When the writ showing service non est was returned, the Circuit Clerk issued an Order of Publication of Notice to a county newspaper. Publication occurred for four consecutive weeks in the newspaper. On September 16, 1983, when the case was called, Randall failed to appear, and the court issued an Order Reviving Judgment. The order recognized service by publication and revived the original judgment of $2,000 alimony in gross and $200 in attorneys' fees, adding $1,481.49 interest and $183 court costs. The court awarded 6% simple interest on the amount owed from June 19, 1973 to September 29, 1979, but charged 9% interest after September 29, 1979, pursuant to § 408.040, RSMo 1986. ¹

On September 15, 1993, Margaret again filed a Motion for Revival of Judgment, claiming that Randall had failed to satisfy the revived judgment of 1983, and that he now owed her a total of $9,087.69, including interest. On September 16, 1994, the Circuit Clerk sent the Clay County Sheriff an order requiring Randall to appear and show cause why the judgment should not be revived. The Sheriff returned the order, indicating personal service on Randall. On October 22, 1993, after a hearing, the court entered its Order Reviving Judgment in the total amount of $9,227.01, with future interest at 9% per annum. Randall appeals the order.

I.

In his first point on appeal, Randall argues that the trial court erred in entering its 1993 revival order, because the 1973 judgment for alimony in gross, attorneys' fees and costs had expired by operation of law. He claims that the judgment was not properly revived within ten years of its original date, since Randall was not personally served by June 19, 1983.

Randall relies upon § 516.350, RSMo 1986, ² which regulates the presumption of payment of judgments:

Every judgment ... shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant ..., then after ten years from and after such revival, ... and after the expiration of ten years from the date of the original rendition or revival upon personal service, ... such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon, for any purpose whatever.

(emphasis added). Pursuant to this statute, Randall claims that "personal service [must be] duly had" in order to revive a judgment. Since Randall was only served by publication in 1983, he argues that the revival was ineffective. It is crucial to determine, therefore, whether the judgment awarding alimony in gross and attorneys' fees pursuant to the couple's divorce decree was properly revived in 1983, or whether a lack of personal service rendered it invalid.

In Driscoll v. Konze, 322 S.W.2d 824, 830-31 (Mo.1959), cert. denied, 360 U.S. 931, 79 S.Ct. 1450, 3 L.Ed.2d 1545 (1959), the Supreme Court interpreted the personal service requirement of § 516.350, although in dictum. The court stated that "a judgment must ... be revived upon personal service, whether the defendant is a resident or nonresident of this state, if the bar of the presumption of the payment statute ... is to be avoided." Id. The court's opinion alludes to the inconsistency between § 516.350 and other provisions allowing for service of scire facias by publication, presumably § 511.410, but leaves the resolution of the conflict to the legislature. Id. at 831.

On its face, this ruling would seem dispositive of the issue in the case at bar. However, the validity of an attempt to revive judgment is governed by the requirements of the rules in effect at the time of the original scire facias proceeding. See Strunk v. Commercial Plastics Co., Inc., 800 S.W.2d 779 (Mo.App.1990). In 1983, the year of Margaret's initial scire facias action, Missouri Supreme Court Rules 74.40, 74.41 and 74.42 were in force. ³ These rules allowed for proper revival through service by publication, provided the defendant could not be found within the state for personal service.

For example, Former Rule 74.40 reads ⁴: "If the defendant cannot be found, the court may make an order setting forth briefly the nature of the case, and requiring all persons interested to appear and show cause, if any, why such judgment or decree should not be revived and the lien continued." Former Rule 74.41, titled "Order, How and Where Published," then explains, in pertinent part: "The practice and procedure in [revival of judgment] proceedings ... shall be in all respects the same as provided for in these rules in ordinary civil actions." And finally, Former Rule 74.42 states: "If upon the service of the scire facias or publication as aforesaid, the defendant ... [does] not appear and show cause against reviving the judgment or decree, the same shall be revived...."

These former rules are in conflict with § 516.350 and the Supreme Court's construction of that statute in Driscoll. Thus, the primary issue before this court is whether the court rules in effect or the applicable statute and its judicial interpretation govern this decision.

Supreme Court Rule 41.02, effective September 1, 1972, resolves the question. As it explains, "Rules 41 to 101, inclusive, are promulgated pursuant to authority granted this Court by Section 5 of Article V of the Constitution of Missouri and supersede all statutes and existing court rules inconsistent therewith." The Missouri Supreme Court's strict interpretation of the § 516.350 personal service requirement was issued in Driscoll on March 9, 1959. Driscoll, 322 S.W.2d at 830-31. Thereafter, Former Rules 74.40, 74.41 and 74.42 were made effective by the Supreme Court on April 1, 1960.

Where a procedural rule adopted by the Supreme Court is "inconsistent with a statute and has not been annulled or amended by later enactment of the legislature, the rule supersedes that statute." State ex rel. Peabody Coal Co. v. Powell, 574 S.W.2d 423, 426 (Mo. banc 1978). Although the legislature reenacted § 516.350 in 1982, it did not annul or amend Former Rules 74.40 to 74.42, because the reenacted statute did not specifically refer to the rules, nor was it limited in purpose to the annulling or amending of the rules. Therefore, under Rule 41.02, the rules allowing for service by publication supersede the requirement of personal service in § 516.350 and Driscoll. See State ex rel. Newton v. Conklin, 767 S.W.2d 112, 118 (Mo.App.1989); State ex rel. Helms v. Moore, 694 S.W.2d 502, 504 (Mo.App.1985).

Accordingly, Margaret effectively revived the judgment in 1983 if she complied with the procedural rules in effect at that time, namely Former Rules 74.40 to 74.42. We find that she did so.

Former Rule 74.40 allows one to publish notice of scire facias proceedings if the defendant cannot be found. An affidavit serves as appropriate evidence that the defendant's location is unknown. Driscoll v. Konze, 296 S.W.2d 31, 34 (Mo.1956). ⁵ Since Margaret filed an affidavit on June 16, 1983 stating that Randall's whereabouts were unknown to her, the return of service on Randall was non est, and publication followed, she properly complied with the rule. ⁶

In addition, Margaret correctly complied with Former Rule 74.41. That rule requires that procedures used in scire facias proceedings be the same as those used in ordinary civil actions. Because Former Rule 54.17 governed service by publication in ordinary civil actions in 1983, we will discuss Margaret's compliance with Former Rule 74.41 by means of Former Rule 54.17.

An Order of Publication of Notice was issued by the clerk on July 18, 1983, pursuant to Former Rule 54.17(a); this order was premised on the non est return of...