Finley v. Morrow, 14034

• Decision Date: 28 August 1985
• Docket Number: No. 14034,14034
• Citation: 697 S.W.2d 543
• Parties: Roberta Anne (Morrow) FINLEY, Respondent, v. Robert Harold MORROW, Appellant.
• Court: Missouri Court of Appeals

Page 543

697 S.W.2d 543

Roberta Anne (Morrow) FINLEY, Respondent, v. Robert Harold MORROW, Appellant.

No. 14034.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 28, 1985.

Motion for Rehearing or Transfer to

Supreme Court Denied Sept. 16, 1985.

Fred Charles Moon, Moon & Moon, Springfield, for respondent.

Loren R. Honecker, Sherwood, Honecker & Bender, for appellant.

PREWITT, Chief Judge.

Appellant Robert Harold Morrow appeals from an order overruling his motion to quash garnishment. Respondent, Robert's former wife, was seeking to collect back due child support ordered by a decree dissolving the parties' marriage. The court's order denying appellant's motion is appealable under § 512.020, RSMo 1978 as a "special order after final judgment". Anderson v. Anderson, 404 S.W.2d 206, 207 (Mo.App.1966).

Appellant's point relied on states:

The trial court erroneously construed and applied the law in overruling appellant's motion to quash because appellant was entitled to credit for excess child support payments paid to respondent in that said payments were made by reason of a mistake of fact and thus were not voluntary overpayments.

During the parties' marriage they had three children. At the time the parties separated appellant's "net income" was a "little bit less than $1,000.00 a month". He was paid twice a month. Appellant and respondent orally agreed that appellant would "give her $250.00 from the top", twice a month. Appellant stated that this was to continue "until it was resolved."

On November 26, 1979, a joint petition seeking dissolution of their marriage was filed. Filed with the petition was a "Property Settlement Agreement" signed by the parties that day. The agreement recited that respondent should have custody of the parties' three minor children and that appellant "shall pay the sum and amount of One Hundred Seventy Dollars ($170.00) per month for child support, which began November 1, 1979, payable $85.00 twice monthly."

On January 3, 1980, respondent and her attorney appeared in court on the petition. Appellant did not appear and was not represented. Following respondent's testimony the court granted the dissolution, found the property settlement agreement conscionable and made it a part of the dissolution decree. ¹ Neither in his oral findings nor in the dissolution decree did the judge set forth the amount of child support. In both instances reference was made to the property settlement agreement. Thereafter, for twenty-three months appellant paid respondent $510 per month. Under the decree and property settlement agreement appellant's only monetary obligation to respondent was child support.

Appellant was out of the county on a work assignment when the dissolution was granted. He testified that upon his return respondent told him that the court set child support payments at $510 per month. Respondent did not deny saying that. She testified that she and appellant had agreed that she would receive $510. Respondent said that the property settlement agreement was meant to be "$170 per child per month". She indicated she thought that it had been written that way and followed by the court.

Twenty-three months after the dissolution, following his remarriage, appellant contacted an attorney to see if the child support could be reduced. After obtaining a copy of the decree and property settlement agreement, the attorney advised appellant that he had been overpaying child support. The attorney also sent a letter to respondent advising her of the overpayment. Thereafter, for the next six months appellant paid $170 per month child support. When his employment was terminated, he made sporadic payments of less than $170.00 per month and later a payment of $1,200.00. When appellant secured part-time employment, respondent caused an execution to be issued seeking back child support and a writ of sequestration to be served on an official of his employer. Appellant then filed the motion seeking to "quash the garnishment". Following an evidentiary hearing, the trial court, relying upon Webb v. Webb, 475 S.W.2d 134 (Mo.App.1971), overruled the motion.

As a general rule, with certain exceptions, as when the parties have agreed, or when other equitable considerations exist, a parent who voluntarily exceeds decreed child support payments may not claim credit against future payments. In re Marriage of Simmons, 636 S.W.2d 351, 352-353 (Mo.App.1982); Webb v. Webb, supra, 475 S.W.2d at 135-136. See also M v. M, 313 S.W.2d 209, 213-214 (Mo.App.1958); Praught v. Carpenter, 657 S.W.2d 68, 70 (Mo.App.1983); Raczynski v. Raczynski, 558 P.2d 425, 429 (Okla.App.1976) (child's welfare must be considered); 24 Am.Jur.2d, Divorce and Separation, § 1077, p. 1061 (1983); Annot., Right to Credit on Accrued Support Payments for Time Child is in Father's Custody or For other Voluntary Expenditures, 47 A.L.R.3d 1031, 1035 (1973). ²

Overpayments due to an erroneous interpretation or recollection of the terms of a contract for child support which is approved by the court does not allow the payor to recoup the overpayments by paying lesser sums in the future and claiming a setoff. Webb v. Webb, supra, 475 S.W.2d at 135-136.

We are not cited to any cases and find none in Missouri where credit was...