Foley v. Foley, WD

• Decision Date: 07 September 1982
• Docket Number: No. WD,WD
• Citation: 641 S.W.2d 138
• Parties: Lavinia O. FOLEY, Plaintiff-Appellant, v. Patrick FOLEY, Defendant-Respondent. 33063.
• Court: Missouri Court of Appeals

Page 138

641 S.W.2d 138

Lavinia O. FOLEY, Plaintiff-Appellant, v. Patrick FOLEY, Defendant-Respondent.

No. WD 33063.

Missouri Court of Appeals Western District.

Sept. 7, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Oct. 5, 1982.

Don Pierce, P.C., Robert D. Colley, St. Joseph, for plaintiff-appellant.

Kranitz & Kranitz, P.C., St. Joseph, for defendant-respondent.

Before SOMERVILLE, C.J., Presiding, and WASSERSTROM and MANFORD, JJ.

SOMERVILLE, Chief Judge.

Lavinia Foley (hereinafter appellant) appeals from an order of the Circuit Court of Buchanan County dismissing her verified petition for registration of a California judgment for child support payable in monthly installments under the Uniform Enforcement of Foreign Judgments Act, Section 511.760, RSMo 1978. ¹

The record on appeal is limited to a legal file. An amalgam of facts drawn therefrom discloses the following. The marital union of appellant and Patrick Foley (hereinafter respondent) was severed by an interlocutory decree of divorce rendered by the Superior Court of Marin County, California, on March 2, 1959. The interlocutory decree "ordered, adjudged and decreed", inter alia, that respondent pay to appellant the sum of "$150.00 per month" for the "support, care and maintenance" of three minor children born of the marriage whose custody was awarded to appellant. No apportionment or allocation of the support money for the respective children was indicated in the order. On June 17, 1966, the Superior Court of Marin County, California, rendered a final judgment of divorce, incorporating therein, insofar as here pertinent, the $150.00 per month for child support awarded appellant in the interlocutory decree. On December 17, 1980, on application of appellant of that date, Richard H. Brenner, Judge of the Superior Court of Marin County, California, entered an order that a "Writ of Execution be issued against defendant [respondent] in favor of plaintiff [appellant] in the amount of $7000.00 in principal, plus $3,171.00 interest for a total of $10,171.00." It is patent that the writ of execution issued in favor of appellant pursuant to CCP § 681 ² (Section 681 of the California Code of Civil Procedure) as a motion filed by appellant on October 10, 1980, to obtain a Writ of Execution pursuant to CCP § 685 ³ (Section 685 of the California Code of Civil Procedure) was denied by order of the Superior Court of Marin County, California, on March 9, 1981. More will be said about CCP § 681 and CCP § 685 as disposition of the appeal sub judice unfolds.

On April 30, 1981, appellant filed a verified petition (Section 511.760.3) in the Circuit Court of Buchanan County, Missouri, to register the California judgment for child support in the amount of $150.00 per month under the Uniform Enforcement of Foreign Judgments Act. Respondent filed a motion to dismiss appellant's verified petition for a triad of reasons: (1) enforcement of the California judgment for child support was barred by respective statutes of limitations of California and Missouri; (2) the California judgment for child support was unenforceable on its face because it failed to specify a fixed and certain amount; and (3) the California judgment for child support was not subject to registration because the state of rendition refused to issue a writ of execution pursuant to CCP § 685.

On July 20, 1981, the Circuit Court of Buchanan County entered an order dismissing appellant's verified petition for registration of the California judgment for child support without any hint as to the ground or grounds relied upon for doing so. A timely appeal ensued.

Appellant perfunctorily asserts on appeal that the California judgment for child support was entitled to "full faith and credit" in Missouri and obliquely submits that it was not barred by respective statutes of limitations of California and Missouri. Appellant's argument primarily consists of the standard rubric that Missouri is required under Art. IV, § 1, Constitution of the United States, to give full faith and credit to the California judgment for child support unless there was (1) lack of jurisdiction over the parties or subject matter, (2) failure to give due or proper notice, or (3) fraud in the procurement of the judgment. See generally: Bastian v. Tuttle, 606 S.W.2d 808, 809 (Mo.App.1980); and Flieder v. Flieder, 575 S.W.2d 758, 760 (Mo.App.1978). Moreover, the constitutional mandate that a forum state give full faith and credit to the judgment of a sister state precludes any inquiry by the forum state into the merits of the underlying cause of action or the validity of the legal principles upon which the foreign judgment rests. Matter of Estate of Fields, 588 S.W.2d 50, 52 (Mo.App.1979).

Appellant's paralogistic argument fails to squarely address the maze of legal complexities presented by this appeal. Respondent has not questioned, either below or on appeal, registration of the California judgment for child support on grounds of lack of jurisdiction, lack of notice, or fraud in its procurement. The points relied upon by respondent in his brief put the legal complexities in far better perspective, and, posed in form of questions, provide a clearer understanding of the dispositional basis of this appeal: (1) Was the California judgment for child support unenforceable on its face because it failed to specify a fixed and certain amount? (2) Was enforcement of the California judgment for child support barred by respective statutes of limitations of California and Missouri? (3) Was registration of the California judgment for child support precluded because the state of rendition refused to issue a writ of execution pursuant to CCP § 685?

The fact that the California judgment provided for future payments in monthly installments, standing alone, did not render it unenforceable in Missouri as the amount of each future installment was definite and certain and the total amount accrued was calculable. The right to enforce a judgment payable in future monthly installments which have already accrued under the judgment of a sister state and which are not retroactively modifiable under the law of the state of rendition come under the aegis of the full faith and credit clause of Art. IV, § 1, Constitution of the United States. Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905 (1910); Buswell v. Buswell, 377 Pa. 487, 105 A.2d 608 (1954); and Silverstein v. Silverstein, 246 Pa.Super. 503, 371 A.2d 948, 950-51 (1977). Concomitantly, under California law, retroactive modification of child support payments is prohibited. Williams v. Williams, 8 Cal.App.3d 636, 87 Cal.Rptr. 754 (1970). According to Restatement (Second), Conflict of Laws, 109(2), a forum state is free to enforce a foreign judgment payable in future monthly installments even though the future installments are subject to modification under the law of the state of rendition. In this day and age of societal mobility a great social injustice would be rent if judgments for child support payments in fixed, future monthly installments were unenforceable in states other than the state of rendition on the singular, hollow argument that they were indefinite and uncertain. See generally Light v. Light, 12 Ill.2d 502, 147 N.E.2d 34, 39-40 (1957).

Due to their patent affinity, the issues posed by the last two referenced questions lend themselves to a joint discussion and disposition. It is well established that the "judgment of a sister state is entitled to no greater effect than is accorded to it in the state where rendered." Daugherty v. Nelson, 241 Mo.App. 121, 234 S.W.2d 353, 360 (1950). See also, Winget v. Woods, 294 S.W.2d 43, 46 (Mo.App.1956). Drawing on this principle, respondent contends, if correctly perceived by this court, that (1) appellant was not entitled to issuance of a writ of execution in California under CCP § 681 because no application therefor was made "within 10 years after the entry" of the judgment for child support, and (2) the Superior Court of Marin County, California, denied appellant's application for issuance of a writ of execution pursuant to CCP § 685. Accordingly, respondent takes the position that the judgment for child support was unenforceable in California, the state of rendition, and, ipso facto, unenforceable in Missouri. Notwithstanding the language of CCP § 681, "within 10 years after the entry" of a judgment, its application in California as to judgments for child support payable in monthly installments is clearly delineated in Bryant v. Bryant, 161 Cal.App.2d 579, 326 P.2d 898, 900 (1958): "The rule is that any award made to a spouse during the pendency of a divorce action, or in the decree, may be enforced by execution, and that a party is entitled, as a matter of right, to execution of a judgment directing payment of monthly sums for support as to all sums that have accrued within 10 years from the date of the application for such execution. Such an application may be made ex parte and it is immaterial that the award itself may have been made more than 10 years prior thereto." (Emphasis added.) See also: DiCorpo v. DiCorpo, 33 Cal.2d 195, 200 P.2d 529, 532 (1948); Lohman v. Lohman, 29 Cal.2d 144, 173 P.2d 657, 660 (banc 1946); and In Re Marriage of Hudson, 95 Cal.App.3d 72, 74-75, 156 Cal.Rptr. 849, 850 (1979). Clearly, under California law monthly installments which accrued within ten years from the date appellant applied for a writ of execution under CCP § 681 were not barred by limitation. CCP § 685, providing extraordinary relief for enforcement of a judgment in California "after the lapse of 10 years from the date of its entry", requires a showing by a judgment creditor that he exercised due diligence during the ten year period in attempting to enforce his judgment, and determination of whether he did so lies within the discretion of the trial court whose determination thereon will not be disturbed absent a...