Dyche v. Dyche

• Decision Date: 12 September 1978
• Docket Number: No. 60378,60378
• Citation: 570 S.W.2d 293
• Parties: Elizabeth J. DYCHE, Respondent, v. William E. DYCHE, Defendant, and General Motors Corporation, Garnishee-Appellant.
• Court: Missouri Supreme Court

Page 293

570 S.W.2d 293

Elizabeth J. DYCHE, Respondent, v. William E. DYCHE, Defendant and General Motors Corporation, Garnishee-Appellant.

No. 60378.

Supreme Court of Missouri, en banc.

Sept. 12, 1978.

Paul Scott Kelly, Jr., Terry J. Brady, John J. Yates, Dennis E. Egan, Gage & Tucker, Kansas City, for garnishee-appellant.

William C. Paxton, Independence, for respondent.

Thos. C. Otter, Kansas City, for amicus Bendix Corp.

Lathrop, Koontz, Righter, Clagett, Parker, & Norquist, Kansas City, for amicus Armco Steel Corp.

ALDEN A. STOCKARD, Special Judge.

Garnishment.

The issue presented for decision is whether a garnishment to collect an attorney's fee granted to the wife in a proceeding under the Dissolution of Marriage Act, §§ 452.300-452.415, Laws of Missouri 1973, p. 470, is subject to the 25% Limitation of the federal Consumer Credit Protection Act, 15 U.S.C.A. § 1673(a), and the corresponding Missouri Statute, § 525.030(2) RSMo Supp. 1971. The trial court held it was not, and the Missouri Court of Appeals, Kansas City District, affirmed. Upon application of the garnishee the case was transferred here by order of this court, and we now determine the cause "the same as on original appeal." Mo.Constit. Art. V, § 10.

Substantial portions of the opinion by the Kansas City District of the Court of Appeals will be stated herein without the use of quotation marks.

Elizabeth and William Dyche were divorced in 1972 and the decree granted custody of the minor children to Elizabeth Dyche and awarded her $100 per month per child as child support. Later that year the custody provisions of the decree were modified by stipulation to award custody to William. In 1974, after the effective date of the Dissolution of Marriage Act, supra, Elizabeth moved for modification of the decree and sought to have custody of the children returned to her, to have child support reinstated, and to be awarded attorney fees and suit money. Pursuant to this motion the court modified the custody provisions, awarded a specified amount for child support, and awarded "partial attorney's fees in the sum of One Thousand Five Hundred Dollars."

The judgment for attorney fees was not paid, and Elizabeth requested a summons of garnishment in aid of execution. In September 1975, garnishment was served on William's employer, General Motors, who answered that it was indebted to William for wages in the total net sum of $1,239.90, but that pursuant to the provisions of the federal Consumer Credit Protection Act, supra, ¹ it was withholding only 25% Of that amount, or $309.98 for payment into the registry of the court.

Elizabeth filed a denial to the answer of General Motors in which she asserted that the judgment sought to be collected constituted an award of attorney fees to a party in a divorce proceeding and is within the "support" exception to the statutory limitations on garnishment. ²

Both Elizabeth and General Motors moved for judgment on the pleadings. The trial court sustained Elizabeth's motion, overruled the motion of General Motors, and entered an order requiring General Motors to pay into court the full $1,239.90 which constituted William's total disposable earnings held by General Motors at the time when it filed its answer to garnishment. See Rule 90.18.

Elizabeth asserts on this appeal that the claim of exemption should have been made to the levying officer, who she contends had the exclusive authority to rule the issue, and that the Circuit Court before whom General Motors presented the issue had no jurisdiction to rule thereon. She cites Dancer v. Chenault, 527 S.W.2d 714 (Mo.App.1975), and Pacific Finance Loans, Inc. v. Richardson, 412 S.W.2d 509 (Mo.App.1967).

We do not consider the Dancer case to be in point. It involved garnishment of a bank account, not wages, and the decision rests upon the construction of statutory provisions other than § 525.030. The Pacific Finance case did involve the garnishment of wages, but it was decided before the 1971 amendment to § 525.030 which added a new provision, subsection (3), which provides: "In any proceeding of garnishment or sequestration of wages under the provisions of sections 525.010 to 525.480, the maximum part of the aggregated earnings of any individual in any workweek which shall be subject to garnishment or sequestration pursuant to the provisions of subsection 2 of this section shall be construed to constitute all wages or earnings of the defendant in the garnishee's possession or charge or to be owing by him to the defendant in that week." This new provision prohibits the garnishee from reporting in its answer to garnishment any amount in excess of the maximum prescribed by subsection 2. General Motors followed the procedure contemplated by the statute when it raised this issue in its answer to garnishment. In addition, the prior rulings on the subject have been made inapplicable insofar as the amount of garnishment of wages is limited by the federal Consumer Credit Protection Act.15 U.S.C.A. § 1673(c) provides: "No court of the United States or any State may make, execute, or enforce any order or process in violation of this section." Regardless of any obligation upon other persons, such as the levying sheriff, to observe restrictions on garnishments, the principal duty to apply the restrictions under the Consumer Protection Act is a judicial one and is on the court. The trial court has jurisdiction of, and the responsibility to enforce, the garnishment restrictions created by the federal statute in question and the Missouri statute supplementing it.

Prior to the enactment of the Dissolution of Marriage Act there was no express statutory authorization for the award of attorney fees in a divorce proceeding or in proceedings incidental thereto. However, the authority to make such an award was found as the result of judicial interpretation that the allowance of attorney fees was a form of and was included within the term "alimony" which was authorized by what was then § 452.070. See Rutlader v. Rutlader, 411 S.W.2d 826 (Mo.App.1967), and the cases there cited. Regardless of the judicially determined basis for making the award, it was only indirectly an award for the support of the wife. It was an award of an amount to be paid to the wife which in turn was to be paid by her to another person who was not a party to the action. At most it relieved the wife of a financial obligation to a third party, and permitted her to litigate her claims in the divorce proceeding.

At the time the order was entered in this case allowing Elizabeth attorney fees the Dissolution of Marriage Act, §§ 452.300-452.415 was in effect. Section 452.335 of that act grants authority to the court to award maintenance to either spouse under certain conditions and in such amounts and for such periods of time as it deems just after considering specified relevant factors. Section 452.340 authorizes the court to order either or both parents owing a duty of support to a child of the marriage to pay a reasonable amount for his support after considering specified relevant factors. In recognition of the need to assure payment, if possible, of these awards the court is authorized by § 452.345 to require that such maintenance or support payments be made to the circuit clerk for remittance to the person entitled to receive them, and by § 452.350 the court is authorized to order the person obligated to pay support or maintenance to make an assignment of a part of his periodic earnings or other income. It is reasonably clear it was the legislative intent that any award for the Support of a spouse or for the Support of a child should be made pursuant to these two statutory provisions.

In § 452.355 separate provision is made for the court to award a spouse litigation costs and attorney fees "after considering all relevant factors including the financial resources of both parties," and the court is authorized to order the attorney fee to be paid directly to the attorney who may enforce the order in his own name. This award is not subject to the provisions of § 452.345 or § 452.355. The separate treatment of maintenance and child support, as one type of an award, and litigation costs and attorney fees as another type of an award, demonstrates a legislative intent not to continue the authority to award attorney fees as an incident to alimony or the present substitute...