Desloge v. Desloge

• Decision Date: 14 April 1981
• Docket Number: No. 43165,43165
• Parties: Miriam T. DESLOGE, (now Potter), Petitioner-Respondent, v. Bernard F. DESLOGE, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 486

617 S.W.2d 486

Miriam T. DESLOGE, (now Potter), Petitioner-Respondent, v. Bernard F. DESLOGE, Respondent-Appellant.

No. 43165.

Missouri Court of Appeals, Eastern District, Division Three.

April 14, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

May 15, 1981.

Application to Transfer Denied July 14, 1981.

Harold B. Bamburg, Ken Heinz, St. Louis, for respondent-appellant.

Bernard Barken, Clayton, for petitioner-respondent.

CRIST, Presiding Judge.

Appellant "husband" appeals the trial court's order which overruled his motion for summary judgment and which further dismissed his motion to modify the dissolution decree with prejudice. Because an order which overrules a motion for summary judgment is interlocutory and therefore not appealable, we are constrained to reverse and remand only that portion of the trial court's action which dismissed his motion to modify. Mitchell v. Commercial Standard Insurance Co., 565 S.W.2d 184, 186 (Mo.App.1978); Hamiltonian Federal Savings & Loan v. Reliance Insurance Co., 527 S.W.2d 440, 444 (Mo.App.1975).

On April 8, 1977, the Circuit Court of St. Louis County entered a decree which dissolved the parties' marriage and ordered them to carry out the terms of their separation agreement. Prior to the court's entry of the above-mentioned dissolution decree, the parties had engaged in negotiations and ultimately executed a stipulation styled "settlement agreement."

The settlement agreement expressed the parties' desire, "to adjust, settle and determine their respective property rights ...." Article III thereof provided that husband "shall pay" wife the sum of $4,132.23 per month for a period of 121 months, and that said payments would terminate upon the first to occur of wife's death or expiration of 121 months. Husband's obligation to make the monthly payments would not cease upon his death, but would be continued by his estate. Article III also provided that the monthly installments would be adjusted annually to conform with the St. Louis area annual average consumer price index. Article III granted each party a complete and unconditional release from all claims or obligations save those expressed in the agreement.

Wife remarried on July 31, 1979, and husband filed his amended motion to modify the dissolution decree shortly thereafter. Husband's amended motion sought termination of his maintenance obligation under Article III of the settlement agreement, as well as an order which would require wife to relinquish maintenance husband had prepaid for the period of July 30, 1979 through January 11, 1980.

Husband moved for summary judgment with respect to his amended motion to modify based on affidavits, certificates and admissions which established wife's remarriage. Wife filed a motion to dismiss husband's amended motion to modify. The court overruled husband's motion for summary judgment and dismissed his motion to modify with prejudice after a non-evidentiary hearing.

Husband correctly maintains that the remarriage of his wife operated so as to terminate his obligation to provide maintenance, because a provision to the contrary was not "express(ed)" in the parties' agreement nor contained in the court's decree. Section 452.370.2, RSMo 1978.

Missouri has adopted two statutes which relate to termination of a maintenance obligation upon remarriage of the party to whom that obligation is owed. Section 452.075, RSMo 1978 states, in pertinent part:

When a divorce has been granted, and the court has made an order or decree providing for the payment of alimony and maintenance of the wife, the remarriage of the former wife shall relieve the former husband from further payment of alimony to the former wife from the date of the remarriage, without the necessity of further court action ....

The above statute was enacted in 1957, and interpreted in Glass v. Glass, 546 S.W.2d 738 (Mo.App.1977). Following introduction of the Dissolution of Marriage Act in 1974, Missouri also adopted § 452.370, RSMo 1978. Subsection 2, thereof, provides that:

Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

Section 452.370, RSMo 1978, is identical in all respects to § 316(b) of the Uniform Marriage and Divorce Act.

Article III of the parties' settlement agreement, which relates to husband's obligation to pay maintenance, reads as follows:

Husband's obligation to make the periodic maintenance payments herein described shall terminate upon the earliest to occur of (a) Wife's death, or (b) the expiration of 121 months after the date said decree becomes final. In the event of the death of Husband, prior to the expiration of 121 months following the date the decree becomes final, the obligation set forth herein shall continue to be paid by the legal representative of his estate during the administration thereof and thereafter ratably by his heirs.

Wife contends that the foregoing excerpt from the settlement agreement satisfies the requirement of § 452.370.2, RSMo 1978 (to-wit: that an obligation to pay future maintenance after remarriage of the receiving party be made "in writing or expressly provided in the decree") inasmuch as the parties expressed but two instances when husband's obligation would terminate, i. e.: (1) upon the death of wife, or (2) upon expiration of 121 months. We cannot agree. The language of § 452.370.2, RSMo 1978 makes it abundantly clear that neither an implied agreement nor an exclusionary inference can satisfy the dictate of § 452.370.2, RSMo 1978, and prevent termination of the maintenance obligation after remarriage.

The Commissioner's Notes which supplement § 316(b) of the Uniform Marriage and Divorce Act (upon which section § 452.370.2, RSMo 1978 is based) explains:

Subsection (b...