Brolinson v. Brolinson

• Court: Missouri Court of Appeals
• Writing for the Court: McMILLIAN; CLEMENS, P. J., and SMITH
• Citation: Brolinson v. Brolinson, 564 S.W.2d 911 (Mo. App. 1978)
• Decision Date: 14 February 1978
• Docket Number: No. 39495,39495
• Parties: Elizabeth D. BROLINSON, Appellant, v. Per Y. BROLINSON, Jan Thomas Brolinson, and Brolinson & Associates, Respondents. . Louis District,Division One

Page 911

564 S.W.2d 911

Elizabeth D. BROLINSON, Appellant, v. Per Y. BROLINSON, Jan Thomas Brolinson, and Brolinson &amp Associates, Respondents.

No. 39495.

Missouri Court of Appeals,St. Louis District,Division One.

Feb. 14, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 10, 1978.

McIlroy & Millan, Bowling Green, for appellant.

James G. Rittenbaum, Louisiana, for respondents.

McMILLIAN, Judge.

Appellant Elizabeth D. Brolinson appeals from a judgment of the Circuit Court of Pike County, Missouri, dismissing her petition to set aside allegedly fraudulent conveyances made by her former husband, respondent Dr. Per Y. Brolinson. Appellant's petition alleged that the transfers made by respondent to his co-respondent, his present wife and Brolinson & Associates, Inc., a corporation, were fraudulent and void, § 428.020 RSMo 1969. For reversal appellant urges that the trial court erred by (1) failing to make findings of fact and conclusions of law, pursuant to Rule 73.01(1)(b), V.A.M.R. and (2) dismissing appellant's petition for failure to state a claim.

After dissolving the marriage between appellant and respondent, the circuit court of Pike County, as a part of its decree, included a provision for child support. This suspect part of the decree ordered respondent to pay appellant $325.00 per month per child, subject to certain provisions as "set forth in the Stipulation and Agreement relative to these payments as the children are in college and become emancipated." Appellant's petition, affidavit and the execution issued upon said affidavit each made reference to the $975.00 per month child support award (there are three children) "which was later reduced down under the Agreement entered into between the parties to the sum of $800.00 per month." In her petition, appellant alleged respondent owed $11,525.00 as of April 1, 1977.

We find no merit in appellant's first claim of error. Rule 73.01(1)(b), V.A.M.R., requires a party to request findings of fact and conclusions of law before final submission of the case. In McIntosh v. White, 447 S.W.2d 75, 77 (Mo.App.1969), the court declared that the submission is final when the evidence and arguments are finished and the court takes the case, whether for immediate decision or under advisement for a future decision. Here appellant made her request after the court sustained respondent's motions to dismiss. Consequently, appellant's request was untimely and the trial court ruled properly.

In view of our final decision, it is unnecessary to discuss but one of the sundry allegations in appellant's petition; that is, the one pertaining to her monetary judgment for child support ordered by the circuit court. The decree entered by the circuit court provided that, " . . . the Defendant (respondent) is ordered to pay to the Plaintiff (appellant) the sum of Three Hundred Twenty-five Dollars ($325.00) per month per child as and for child support, subject to certain provisions as set forth in the Stipulation and Agreement relative to these payments as the children are in college and become emancipated." We note also that although the dissolution decree made reference to a Stipulation and Agreement, it made no mention that the property settlement agreement was to be incorporated therein. In fact, the Stipulation and Agreement was not incorporated into the decree.

In Rodden v. Rodden, 527 S.W.2d 41, 43 (Mo.App.1975), this court held language in a judgment ordering a party to pay "all extraordinary medical expenses" to be unenforceable. We cited with approval from Loomstein v. Mercantile Trust Nat. Ass'n, 507 S.W.2d 669, 670 (Mo.App.1974), which held that an order requiring the defendant to pay "all sums necessary for his daughter's college and graduate" expenses was unenforceable. The rationale behind these cases is that a judgment must be sufficiently certain in its terms to be susceptible of enforcement in the manner provided by law. It must be in such form that the clerk may issue an execution upon which an officer is able to execute, Bishop v. Bishop, 151 S.W.2d 553, 557 (Mo.App.1941), without requiring external proof and another hearing. If a judgment does not satisfy this requirement of certainty, it is null, void and unenforceable, e. g., Sunderwirth v. Williams, 553 S.W.2d 889 (Mo.App.1977).

In this case the judgment awarding the $325.00 per month per child for child support was subject to an unknown Stipulation and Agreement relative to some undetermined college...