Bryson v. Bryson

• Court: Missouri Court of Appeals
• Writing for the Court: SNYDER; CRIST, P. J., and REINHARD
• Citation: Bryson v. Bryson, 624 S.W.2d 92 (Mo. App. 1981)
• Decision Date: 08 September 1981
• Docket Number: No. 43616,43616
• Parties: Janet R. BRYSON, Plaintiff-Appellant, v. James H. BRYSON, Defendant-Respondent.

Page 92

624 S.W.2d 92

Janet R. BRYSON, Plaintiff-Appellant, v. James H. BRYSON, Defendant-Respondent.

No. 43616.

Missouri Court of Appeals, Eastern District, Division Three.

Sept. 8, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 16, 1981.

Application to Transfer Denied Dec. 14, 1981.

Kenneth S. Lay, Tremayne, Lay, Carr & Bauer, Clayton, for plaintiff-appellant.

Leonard J. Frankel, Wolff & Frankel, Clayton, for defendant-respondent.

SNYDER, Judge.

Janet Bryson appeals from the trial court's unfavorable summary judgment in a declaratory judgment action in which she had sought a declaration of the rights and duties of the parties under a separation agreement entered pursuant to a decree of dissolution of marriage granted on July 24, 1975.

The trial court ruled that the parties' spousal maintenance provision established by the separation agreement and incorporated into the dissolution decree was decretal, but that it was unenforceable and void because it lacked sufficient certainty, definiteness and exactness. The separation agreement and dissolution decree incorporating the agreement provided that respondent would pay maintenance in the sum of $350 per month to appellant for her support, or a sum equal to 33 percent of respondent's gross income from wages, whichever was greater. ¹

The trial court also denied appellant's request for an award of attorney fees.

The judgment denying the award of attorney fees is affirmed. The judgment respecting the maintenance award is reversed and remanded.

The appellant contends the trial court erred in holding the maintenance provision of the decree void for lack of certainty. This court agrees, although the error was understandable because, when the trial court ruled, the state of the law relating to spousal maintenance such as appellant's was uncertain.

Prior to the enactment of the Dissolution of Marriage Act, §§ 452.300, et seq., RSMo 1978, ² effective January 1, 1974, provisions for alimony or support awarded upon a divorce were either contractual or decretal. Decretal alimony was determined by the court, although often upon the parties' stipulated suggestions which were submitted to the court and incorporated into the decree. Decretal alimony was subject to subsequent modification by the court and, because it was a part of the divorce decree, could be enforced as a judgment. In re Haggard, 585 S.W.2d 480, 481 (Mo. banc 1979).

Contractual support was a matter of private agreement between the parties although the agreement or stipulation was often filed with the court and the alimony terms included in the decree. Contractual support was not modifiable except by mutual consent of the parties or by the court upon the basis of fraud, duress or illegality and was enforceable only by a separate suit on the contract. In re Haggard, supra at 481.

Provisions for alimony or support set forth in separation agreements were construed upon their wording to ascertain whether the parties intended decretal alimony or contractual support. The intention of the parties was determinative. Keltner v. Keltner, 589 S.W.2d 235, 238(3) (Mo. banc 1979); Brewer v. Brewer, 607 S.W.2d 694, 695-696(1-4) (Mo.App.1980). Various factors were considered indicative of the parties' intention. Factors which indicated a contractual intention included the use of a broad, all-encompassing agreement and an award beyond the court's power to decree, Brewer v. Brewer, supra, factors noted by appellant in her case.

Prior to the Dissolution of Marriage Act, courts were persistently confronted with the problem of construing whether the parties intended decretal alimony or contractual support. In re Haggard, supra.

This pattern was changed, however, by the Dissolution of Marriage Act. The Dissolution Act's maintenance provisions were designed to eliminate the problem of determining the intent of the parties. Three categories of spousal maintenance are now available upon dissolution of marriage. They are as follows:

1. Maintenance (decretal maintenance) which is awarded by the court upon consideration of the factors set forth in § 452.335 and not as a result of any agreement between the parties. In re Haggard, supra.

2. Private contractual maintenance created by the parties' express provision in a separation agreement found conscionable by the trial court but not, by express direction of the parties in the separation agreement, incorporated in the decree. § 452.325. ³ Such contractual maintenance would correspond to former contractual alimony and would be nonmodifiable except by the parties' mutual consent or for fraud, duress or illegality. It would be enforced, not as a judgment, but by a separate suit to enforce the contract. In re Haggard, supra.

3. Maintenance based upon a separation agreement which is incorporated into the decree which might be called separation agreement decretal maintenance. § 452.325.4(1). Maintenance included in a decree by incorporation of the parties' separation agreement as provided in § 452.325.4(1) may be modified by the court in a proper case, just as the former decretal alimony was, unless the parties provide specifically in the separation agreement that modification is precluded or limited. § 452.325.6. Separation agreement decretal maintenance based on § 452.325 is enforceable as a judgment just as the former decretal alimony was. In re Haggard, supra; Brucker v. Brucker, 611 S.W.2d 293 (Mo.App.1980).

Whether the spousal maintenance is contractual, or incorporated into the decree and enforceable as a judgment pursuant to § 452.325.4(1), is determined by the parties' express provision in their agreement. In re Haggard, supra; Brucker v. Brucker, supra; Block v. Block, 593 S.W.2d 584, 590(8) (Mo.App.1979). The courts no longer interpret the intention of the parties to determine the nature of the parties' spousal maintenance obligations, Brucker v. Brucker, supra at 295(1), but problems of enforcement of maintenance provisions persist under the Dissolution of Marriage Act.

The case under review illustrates the persisting problem of determining whether maintenance is decretal or contractual even under the Dissolution of Marriage Act. The parties' separation agreement did not expressly provide that the separation agreement was to remain contractual and not be incorporated into the dissolution decree. Therefore, the spousal maintenance obligation of respondent was incorporated into and became enforceable as a part of the dissolution decree. The parties' maintenance provision thus falls into the third category described above, separation agreement decretal maintenance. In re Haggard, supra; Brucker v. Brucker, supra; Block v. Block, supra. The payment of maintenance cannot be enforced as a contract because the maintenance provision was a part of the decree. Now the trial court has ruled that the maintenance provision, although "decretal in nature", is void and unenforceable because it "lacks sufficient certainty, definiteness and exactness."

Under the law in the cases prior to the Dissolution of Marriage Act the judgment would have been unenforceable because the amount due was indefinite. Ferriss v. Ferriss, 477 S.W.2d 745, 748-749(2) (Mo.App.1972); Taylor v. Taylor, 367 S.W.2d 58, 62-64(4-7) (Mo.App.1963). Nevertheless, the payee of the maintenance had a remedy. She could have enforced payment in a separate action on the contract. Ferriss v. Ferriss, supra at 748(1).

The question squarely presented to this court is whether under present law appellant is devoid of any remedy; whether the separation agreement and award of maintenance included in the decree by statutory mandate are both nullities.

If this court were to affirm the trial court's judgment, appellant is effectively barred from collecting maintenance. She has no judgment. She has no enforceable contract. The legislature in drafting the Dissolution of Marriage Act could not have intended such a result. Appellant should and does have a remedy. This court holds that appellant has a valid judgment enforceable by all remedies available for enforcing judgments and can place before the court evidence of the exact amount due under the terms of the separation agreement which has been incorporated in the decree. § 452.325.5.

The cases have held that a maintenance decree is indefinite, uncertain and unenforceable if the amount of the judgment cannot be ascertained without resort to external proof beyond the record or another hearing. In re Wofford, 589 S.W.2d 323, 327(10-11) (Mo.App.1979); J.A.A. v. A.D.A., 581 S.W.2d 889, 898(21) (Mo.App.1979); Ferriss v. Ferriss, supra at 748-749(2). Under cases prior to the Dissolution of Marriage Act, an award of maintenance as a percentage of the income of the paying spouse was considered such an indefinite award. Ferriss v. Ferriss, supra; Taylor v. Taylor, supra. In the case being considered, however, incorporation of the parties' maintenance provision into their dissolution decree, which should make the maintenance provisions enforceable as a judgment, would have rendered it unenforceable as a judgment under the old divorce law because the amount is uncertain.

How can a maintenance payee enforce the maintenance provision of a separation agreement, incorporated into the decree under the statute, if the amount of the payment is uncertain? Cases interpreting maintenance decrees based on separation agreements entered since the Dissolution of Marriage Act became effective and which have held that maintenance provisions uncertain in amount were unenforceable as judgments have not presented nor answered the precise question that confronts the court here. In re Wofford, supra (spousal maintenance award "for such period of time as she is unable to support herself"); J.A.A. v. A.D.A., supra (spousal maintenance contingent on recipient working less than 30 hours per week).

Dissolution agreements concerning maintenance, if conscionable, are binding upon the...