Cloyd v. Cloyd

• Decision Date: 07 March 1978
• Docket Number: No. 38853,38853
• Citation: 564 S.W.2d 337
• Parties: Rita Marie CLOYD, Plaintiff-Respondent, v. Mason D. CLOYD, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 337

564 S.W.2d 337

Rita Marie CLOYD, Plaintiff-Respondent, v. Mason D. CLOYD, Defendant-Appellant.

No. 38853.

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

March 7, 1978.

Motion for Rehearing and/or Transfer to Supreme Court April

10, 1978.

Application to Transfer Denied May 9, 1978.

Donald R. Wilson, St. Louis, for defendant-appellant.

Dowd & Oates, Edward L. Dowd and Francis M. Oates, St. Louis, for plaintiff-respondent.

GUNN, Presiding Judge.

Defendant, Colonel Mason D. Cloyd, appeals from a judgment of the circuit court overruling his motions to quash writs of garnishment directed against wages owed to him by the United States Air Force. The garnishments were initiated by his former wife, Rita Marie Cloyd, in order to collect a previous Missouri judgment for alimony and child support. On appeal, defendant argues that the writs of garnishment could not lie because personal jurisdiction was not obtained over him in the underlying divorce proceeding, rendering void the money judgment awarded. Further, he argues that because the trial court sustained his motion to quash one garnishment it was bound by the doctrine of res judicata to sustain his motions to quash succeeding garnishments. Finally, he argues that because of improper service the court did not obtain personal jurisdiction over the garnishee or the res to be garnished. We affirm.

On March 19, 1971, Rita Marie Cloyd, while a resident of Missouri, filed a petition for divorce in the circuit court of the City of St. Louis. Brian Douglas Cloyd, born March 17, 1951, was the only child of the marriage. Col. Cloyd, a physician with the United States Air Force, was then stationed in Denver, Colorado. ¹ The summons and a copy of the petition were served by registered mail addressed to Col. Cloyd at a military facility in Denver. Even though the receipt bore directions that the registered letter was to be delivered to the addressee only, the return receipt dated March 29, 1971 was signed for Col. Cloyd by Vera B. Morris. ² An answer in the nature of a general denial was subsequently filed by a St. Louis attorney, Frank N. Carter, Jr., purportedly at the behest and with the authority of Col. Cloyd. Mr. Carter also appeared at a hearing on Mrs. Cloyd's motion for alimony, child support and attorney's fees pendente lite. No other reference to Mr. Carter's representation appears in the record until August 18, 1971, when, by leave of court, he withdrew as Col. Cloyd's attorney. On August 31, 1971, Mr. Carter mailed a letter to Col. Cloyd's Denver address advising him that,

"Your divorce case was set for hearing on August 18, 1971, in Division 14 of the Circuit Court of the City of St. Louis, Missouri. As I had not received any response from you regarding the interrogatories that I had previously forwarded nor any other response from you indicating your position on the matter, I requested leave of Court to withdraw as your attorney. This was approved by the Court.

I suggest that you retain counsel to represent you immediately. To fail to do so would put you to a decided disadvantage upon the next court setting."

There is no indication in the record whether Col. Cloyd actually received this letter, but if he did, he took no action on it. On September 29, 1971, a decree of divorce was granted to Mrs. Cloyd. Col. Cloyd was ordered to pay $400 per month alimony, $250 per month child support and $400 for attorney's fees. Neither Col. Cloyd nor an attorney on his behalf appeared at the divorce proceeding.

No action was taken to collect the judgment until October 10, 1975, when Mrs. Cloyd filed a request for a thirty day garnishment alleging that the judgment was unsatisfied to the extent of $23,164.00 with interest and costs. ³ The United States Attorney in St. Louis was named garnishee in his capacity as a United States government officer. An execution dated October 14, 1975, was issued along with a sheriff's levy returnable November 13, 1975, and the United States Attorney was summoned as garnishee. The United States, Department of the Air Force, filed an answer of garnishee on November 20, 1975, stating that it was indebted to Col. Cloyd in the sum of $2,114.70. This amount was, on the court's order, paid into the circuit court and subsequently paid out to Mrs. Cloyd without objection.

On January 6, 1976, a request for a ninety day garnishment based on the same unsatisfied judgment was filed again naming the United States Attorney, in his capacity as United States government officer, as garnishee. ⁴ A sheriff's levy returnable April 4, 1976, was issued and the United States Attorney was served with a summons of garnishment. The Air Force filed an answer of garnishee on February 23, 1976, admitting that as of the return date it would be indebted to Col. Cloyd in the sum of $6,597.86. This second garnishment, unlike the first, was contested by means of a motion to quash alleging, inter alia, several of the grounds asserted in this appeal. A hearing was held in which Col. Cloyd was represented by counsel, and the motion to quash garnishment No. 2 was taken under submission. Thereafter, Col. Cloyd, with leave of court filed a supplemental motion to quash accompanied by affidavits from himself and Frank N. Carter, Jr., purporting to deny Carter's authority to file an appearance for Col. Cloyd in the original divorce proceeding.

Meanwhile, a request for a second ninety day garnishment, (the third garnishment) in all material respects identical to the previous requests, was filed by Mrs. Cloyd on May 11, 1976. ⁵ The sheriff's levy in this instance was returnable on August 23, 1976. Col. Cloyd filed a motion to quash this third garnishment while his motion to quash garnishment No. 2 was still under submission. A hearing on the motion was set for July 19, 1976, but when Mrs. Cloyd failed to appear the court quashed garnishment No. 3 without hearing any evidence. ⁶

On September 3, 1976, a third request for a ninety day garnishment (the fourth garnishment) was filed, and the United States Attorney was summoned as a garnishee. ⁷ A motion to quash this garnishment was filed and was taken under submission.

On October 8, 1976, the circuit court held a hearing to facilitate the disposition of the motions to quash garnishments Nos. 2 and 4 which were still under submission. No further evidence was heard. Mrs. Cloyd through her attorney waived an opportunity to offer additional evidence or to have a further hearing in connection with the pending garnishments. Likewise, Col. Cloyd elected to rest his opposition to the garnishment solely on the grounds stated in his motions to quash as supported by the evidence contained in the accompanying affidavits.

In his affidavit, Col. Cloyd stated that after he received the summons and divorce petition by mail he telephoned Al Roth, a St. Louis attorney with whom he was acquainted, to discuss the matter. Mr Roth advised him that because of his friendship with both of the Cloyds he would represent neither, but that "he would look into the matter further and advise." Col. Cloyd averred that he had no subsequent communication with Mr. Roth; that he had no communication with Mr. Carter; and that he did not authorize Mr. Carter to enter an appearance in the divorce proceeding or have knowledge that he was going to undertake to represent him in any way.

In his affidavit Mr. Carter stated that Mr. Roth had contacted him in May, 1971, requesting that he file an answer on behalf of Col. Cloyd in the pending divorce and that he appear in his behalf at the PDL hearing. Mr. Carter complied with these requests. Thereafter he attempted to communicate in writing with Col. Cloyd concerning unanswered interrogatories. Receiving no response to these letters, Mr. Carter withdrew from the case and notified Col. Cloyd of his withdrawal by mail. Mr. Carter stated that he did not know Col. Cloyd and had never discussed the divorce suit with him. He averred that Col. Cloyd gave him no authorization to act in his behalf and that he acted solely at the behest of Mr. Roth. There was no affidavit or other testimony from Mr. Roth, and his absence was not explained.

On November 29, 1976, the circuit court overruled the motions to quash garnishments Nos. 2 and 4. It is from this order that Col. Cloyd appeals. ⁸

Col. Cloyd's first assault on the garnishment relates to the validity of the underlying divorce decree awarding alimony and child support. He argues that the court which granted the divorce was not empowered to enter a money judgment against him because personal jurisdiction was not obtained. Col. Cloyd was not personally served, and he states in his affidavit that the purported appearance entered by Mr. Carter in his behalf was without authority. He therefore argues the writs of garnishment should be quashed.

A valid judgment is an indispensible prerequisite to a valid garnishment. Before a court may rightfully award a money judgment against a party, there must have been either personal service or a general appearance by the party himself or through counsel. First National Bank in Chester v. Conner, 485 S.W.2d 667 (Mo.App.1972). Where there is no personal service and where the attorney who enters an appearance on behalf of a party without his consent, the answer filed does not confer personal jurisdiction over the party, and any money judgment entered is void. Id. The proper remedy in the face of a writ of garnishment based on judgment void for lack of personal jurisdiction is a motion to quash. Drinkard v. Eastern Airlines, Inc., 290 S.W.2d 175 (Mo.App.1956); Lohmann v. Lohmann, 246 S.W.2d 368 (Mo.App.1952); Weniger v. Weniger, 32 S.W.2d 773 (Mo.App.1930). A motion to quash a garnishment for alleged invalidity of the judgment, however, is a collateral attack on the judgment and will lie only where the record affirmatively discloses that the judgment is void. First National Bank in Chester v. Conner, supra. But such a...