Babb v. Pfuehler

• Decision Date: 12 May 1997
• Docket Number: No. 20937,20937
• Citation: 944 S.W.2d 331
• Parties: Dorothy BABB, Respondent, v. Phillip Arthur PFUEHLER, Appellant.
• Court: Missouri Court of Appeals

Page 331

944 S.W.2d 331

Dorothy BABB, Respondent, v. Phillip Arthur PFUEHLER, Appellant.

No. 20937.

Missouri Court of Appeals,

Southern District,

Division Two.

May 12, 1997.

Jim S. Green, Sikeston, for appellant.

James C. Bullard, Bullard & Bullard, Kennett, for respondent.

CROW, Presiding Judge.

On May 10, 1994, Dorothy Babb ("Dorothy") ¹ commenced this suit by filing a petition against Phillip Arthur Pfuehler ("Phillip"). The petition alleged Dorothy is the mother of a child ("Child") born February 1, 1976, and Phillip is Child's "natural father." The petition further pled Dorothy had borne all of the expense of raising Child and was entitled to reimbursement from Phillip "for a portion of the monies expended in caring for and raising [Child]."

In his answer, Phillip averred Dorothy was "prohibited from pursuing this cause of action because the Statute of Limitations has run...." On the day of trial, the court granted Phillip leave to amend his answer to specifically plead "Sections 516.120 and 516.110 R.S.Mo."

The suit was tried to a jury. Dorothy presented evidence regarding amounts she spent for necessaries ² for Child from 1980 (when Child reached age four) through January, 1995; however, Dorothy testified she was not seeking reimbursement for any expenditure after December 31, 1994. Phillip objected to evidence of any expenditure by Dorothy (a) prior to May 10, 1989 ³ (the date five years immediately preceding the date this suit was filed), and (b) after May 10, 1994 (the date this suit was filed).

The jury returned a verdict awarding Dorothy $40,000 from Phillip. The trial court entered judgment per the verdict.

Phillip appeals. The first of his four points relied on reads:

"The trial court allowed [Dorothy] to introduce into evidence [her] estimated expenses for raising the child for a period from 1983 through 1995. [ ⁴] The trial court erred in failing to limit the evidence for recovery to the period of the statute of limitations (i.e. May 10, 1989, to May 10, 1994)."

Inasmuch as the point is based on the premise that Dorothy's claim was subject to a five-year statute of limitation, our first task is to determine whether that premise is correct.

One of the statutes cited by Phillip in support of his first point is "Section 515.120 RSMo." That section is not a statute of limitation. We deduce from the record and Phillip's reply brief that the statute he meant to cite is § 516.120, RSMo 1994. It reads, in pertinent part:

"Within five years:

(1) All actions upon contracts, obligations or liabilities, express or implied ... except where a different time is herein limited...."

The above statute must be read in conjunction with § 516.100, RSMo 1994, another statute cited by Phillip. It reads, in pertinent part:

"Civil actions ... can only be commenced within the periods prescribed in the following sections, after the causes of action shall have accrued; provided, that for the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment, and, if more than one item of damage, then the last item, so that all resulting damage may be recovered, and full and complete relief obtained."

The first of the two cases cited by Phillip in support of his first point is Allen v. Allen, 364 Mo. 955, 270 S.W.2d 33 (1954). There, a 1942 divorce decree awarded custody of the parties' minor daughter to the mother, but awarded no child support. 270 S.W.2d at 34-35. On June 20, 1952, id. at 38, the mother sued the father for a sum which the mother alleged she had spent during the preceding ten years for care and support of the daughter. Id. at 34. The father pled that any claim for support prior to June 30, 1947, was barred by the five-year statute of limitation, § 516.120. ⁵ Id.

The mother maintained that the father's obligation to support the daughter was a continuing one, hence § 516.120(1) (quoted in part earlier in our opinion) was inapplicable. Id. at 37. The Supreme Court rejected that argument, explaining that the obligation the mother sought to enforce was the common law duty imposed on the father to support his child. That duty, said the Court, was "in the absence of precisely applicable terminology in the statute of limitations, 'obligations or liabilities, express or implied,' ... § 516.120(1), a quasi-contractual obligation." Id. at .

The Supreme Court then examined § 516.100 (also quoted in part earlier in our opinion) to determine when the mother's cause of action accrued. The Court held:

" '[A] cause of action accrues, and limitations thereon begin to run, when the right to sue arises.' ... [W]hen several payments are made to discharge an obligation for which another is primarily liable, a separate cause of action accrues when each payment is made, and the statute of limitations as to each cause of action runs from the date of the particular payment, as in the case of salaries payable monthly. Under the statute, a plaintiff may wait until all installments are due and then bring one action, 'but, if while waiting some installments have been due for the period of limitation, they will be barred.' ... [T]he period of limitation must be computed from the time the cause of action accrued, and since, according to the transcript, the [mother's] action was instituted on June 20, 1952, she is not entitled to recover for maintenance furnished prior to June 20, 1947."

Id. at 38[6, 7] (citations omitted; emphasis in original).

There is, of course, a difference between Allen and the instant case. In Allen, the daughter was born while the parents were married to each other. Here, Dorothy and Phillip were never wed to each other. However, that does not exonerate Phillip from his duty to support Child, nor does it impair Dorothy's right to reimbursement from Phillip for expenses she incurred for necessaries for Child. McNulty v. Heitman, 600 S.W.2d 168, 171-72[1,2] (Mo.App. E.D.1980).

Explaining a mother's rights, McNulty says:

"[A] mother has the option, if she wishes, to seek support before the expense is incurred, [an] equitable remedy[,] or furnish the necessary support and then seek a legal remedy to recover the reasonable value of her expenses."

Id. at 172.

However, warns McNulty:

"If she seeks the latter, this may not be a wise course of action because the statute of limitations may operate to bar her action. Allen v. Allen, 364 Mo. 955, 270 S.W.2d 33 (1954)."

McNulty, 600 S.W.2d at 172 n. 3.

It thus appears from Allen and McNulty that § 516.120(1) bars Dorothy from claiming reimbursement from Phillip for necessaries she provided Child prior to May 10, 1989. However, resolving Phillip's first point is not that simple.

In 1987, the General Assembly of Missouri enacted the Uniform Parentage Act ("UPA"). Laws of Missouri 1987, C.C.S.S.B. No. 328, pp. 646-53, now codified as §§ 210.817-.852, RSMo 1994, as amended. The UPA established a comprehensive procedure for determining paternity of, and compelling support for, children born in or out of wedlock. One provision of the UPA, § 210.828.2, reads:

"A parent's retroactive liability to another party for reimbursement of necessary support provided by that party to the child for whom a parent and child relationship is established under sections 210.817 to 210.852 is limited to a period of five years next preceding the commencement of the action."

Although the above statute appears to precisely fit the instant suit, Phillip did not cite it in the trial court and does not rely on it in this appeal. That may be because, as explained in the next paragraph, paternity was not an issue in the instant suit.

While the instant suit was pending in the trial court, another circuit court in a separate action entered judgment declaring Phillip the father of Child. ⁶ We henceforth refer to that action as "the paternity suit." The instant suit was tried some fourteen months after entry of the judgment in the paternity suit. Before voir dire in the instant suit, by agreement of the parties, the trial court informed the venire that another court had determined Phillip was Child's father, hence this suit was "for the reimbursement of necessaries for [Child]." ⁷

Understandably, Dorothy does not argue that § 210.828.2 applies in the instant suit instead of § 516.120(1). Her hypothesis, as we comprehend it, is that this suit is a common law action, not a statutory action under the UPA, hence § 210.828.2, a part of the UPA, does not apply.

Because neither party relied on § 210.828.2 in the trial court and neither party does so here, we shall decide Phillip's first point on the premise that § 516.120(1), as applied in Allen, 270 S.W.2d at 38, is the statute of limitation applicable to Dorothy's claim. We do not imply we would do so if one of the parties maintained § 210.828.2 applies.

Dorothy claims there are two reasons why § 516.120(1) does not bar her from reimbursement for expenses incurred for necessaries for Child prior to May 10, 1989. The first reason, says Dorothy, is that her cause of action did not accrue until December 31, 1994, when she no longer provided necessaries for Child. According to Dorothy: "That is the point in time when the last item of damage was sustained and the point when all resulting damage could be recovered." Dorothy relies on § 516.100, quoted in part earlier in this opinion.

Unfortunately for Dorothy, the Supreme Court of Missouri rejected the identical argument in Allen, 270 S.W.2d at 38. Dorothy does not attempt to distinguish Allen on that point, and we find it indistinguishable.

Dorothy's second argument that § 516.120(1) does not bar her from reimbursement for expenses incurred for necessaries for Child prior to May 10, 1989, is that she could not sue Phillip until January 19, 1995, the date his fatherhood of Child was established in the...