Foster v. Foster

• Decision Date: 30 January 2001
• Citation: 39 S.W.3d 523
• Parties: (Mo.App. E.D. 2001) A. Bryant Foster, Appellant, v. Judith Ann Foster, Respondent. ED77386 0
• Court: Missouri Court of Appeals

39 S.W.3d 523 (Mo.App. E.D. 2001)

A. Bryant Foster, Appellant, v. Judith Ann Foster, Respondent.

ED77386

Missouri Court of Appeals Eastern District

01/30/2001

Appeal From: Circuit Court of the City of St. Louis, Hon. Thomas J. Frawley

Counsel for Appellant: David L. Baylard and Christopher W. Jensen

Counsel for Respondent: Charles P. Todt

Opinion Summary: A. Bryant Foster (Husband) appeals the trial court judgment awarding Judith Foster (Wife) $17,784.79, representing Husband's delinquent obligation to maintain a medical and hospitalization insurance policy in Wife's favor, and attorney's fees. Husband appeals.

Division Three holds: (1) Wife's claims were not barred by the statute of limitations in that maintaining medical insurance was a form of maintenance, not limited by Section 516.350.1 RSMo (1994). (2) Wife's claims were barred partially by res judicata, requiring reversal and remand to recalculate damages. (3) The trial court did not err in ordering Husband to pay missed premium payments even though the trial court did not find Husband in contempt because such award is not beyond the scope of the contempt proceedings, the provision was enforceable, and Wife did not waive her claim by acquiescence.

George W. Draper III, Judge

A. Bryant Foster (hereinafter, "Husband") appeals the judgment of the trial court awarding Judith Foster (hereinafter, "Wife") $17,784.79 representing Husband's delinquent obligation to maintain a medical and hospitalization insurance policy in Wife's favor, and attorneys' fees. Husband appeals claiming: (1) the trial court erred in not dismissing Wife's motion for contempt in that it was barred by the statute of limitations; (2) Wife's claim was barred by res judicata, and (3) the trial court erred in entering the award in Wife's favor. We affirm in part and reverse and remand in part.

On October 13, 1977, Husband and Wife's marriage was dissolved. Under the terms of the decree of dissolution, which incorporated the terms of the separation agreement, Wife was awarded maintenance in the amount of $1,125 per month. The decree further stated, "the husband shall also keep in effect at his expense the policy of medical and hospitalization insurance for the wife or a comparable policy." Wife obtained a court order on December 29, 1981, modifying her maintenance award, increasing it to $2,000 per month.

Wife filed a motion for contempt on November 5, 1995, alleging Husband was late continually with his maintenance payments, and "[Husband] has failed to make at least five maintenance and insurance payments." On March 28, 1996, the court found Husband in contempt as to his maintenance obligation in the amount of $12,000. The order did not mention Husband's obligation to pay insurance premiums nor that he was in contempt for failing to make such payments.

Wife filed another motion for contempt on December 16, 1998, alleging Husband had continually failed to keep in effect at his expense the policy of medical and hospitalization insurance for Wife or a comparable policy. Wife alleged that beginning in December 1991, Husband failed and refused to pay the increase in Wife's medical and hospitalization insurance rates, and beginning in November 1997, Husband failed and refused to pay all of the expense to maintain Wife's medical and hospitalization insurance. This forced Wife to obtain and financially maintain such insurance, where the rates increased yearly due to a preexisting condition. Wife's prayer for relief included citing Husband for contempt, compelling Husband to pay Wife all monies reimbursing her of his obligation, ordering Husband be incarcerated until such time as he has purged himself of this contempt, and attorney's fees.

Husband filed a motion to dismiss Wife's contempt motion in that the provision of the dissolution decree upon which Wife's motion was premised was vague, ambiguous, indefinite, and uncertain. Husband also filed a motion to dismiss claiming Wife's contempt motion was barred by the statute of limitations. A full hearing was conducted on Wife's motion for contempt, with the trial court taking Husband's motions to dismiss with the case.

According to Wife, upon termination of Husband's employment in December 1985, she was required to obtain an individual policy of medical and hospitalization insurance for herself. Wife attempted to obtain insurance with Blue Cross/Blue Shield, but was turned down. Wife has been required to change insurance coverage several times to avoid premium increases, and admits Husband reimbursed the premiums paid by her for her insurance coverage until December 1991.

Wife further testified Husband had not paid more than $275 per month in reimbursement of amounts paid by her for her insurance since January 1992. Wife testified her current premium was approximately $660 per month. Numerous letters were exchanged where Husband stated he would not pay more than $275 per month and Wife should seek less expensive insurance. Wife in turn submitted several letters to Husband requesting the late insurance and maintenance payments, but most letters did not dispute the payment of $275 per month by Husband. Wife received six checks from December 1998 to August 1999 in the amount of $2,275 with restrictive endorsements stating that the checks were for maintenance and medical insurance reimbursement, all of which Wife cashed. Wife testified that as a result of Husband's failure to maintain a medical insurance policy, he was indebted to her in the amount of $17,784.79 for premiums paid by her for medical insurance.

The trial court entered its judgment on January 6, 2000, finding Husband was not in contempt under the dissolution decree. The trial court stated that although Husband failed to maintain a policy of medical insurance for Wife, the dissolution decree did not specify the monthly amount payable by Husband to maintain such coverage, thus precluding a finding of contempt. However, the trial court held the provision in the decree was not too vague or ambiguous to be enforced, and held the provision constituted an award of maintenance. Therefore, the action was not barred by the statute of limitations. The trial court entered judgment in favor of Wife in the amount of $17,784.79 and awarded Wife $4,000 in attorney's fees. Husband appeals.

In civil contempt cases, the trial court's judgment will not be disturbed on appeal absent a clear abuse of discretion. Gerau v. Gerau, 927 S.W.2d 441, 443 (Mo. App. E.D. 1996). The judgment must be sustained unless there is no substantial evidence to support it, it is against the weight of evidence, or it erroneously applies or declares the law. Id. See also, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Husband's first point on appeal alleges the trial court erred in not dismissing Wife's motion in that the motion was time barred by Section 516.350.1 RSMo (1994)¹ in that such payments are not maintenance and the original dissolution decree had not been revived. Section 516.350.1 states in pertinent part:

Every judgment, order or decree of any court of record...except for any judgment, order, or decree awarding child support or maintenance which mandates the making of payments over a period of time, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.

Wife contends that Section 516.350.2 is applicable because such payments are a form of maintenance, and thus her motion was not time-barred. Section 516.350.2 states in pertinent part:

In any judgment, order, or decree awarding child support or maintenance, each periodic payment shall be presumed paid and satisfied after the expiration of ten years from the date that periodic payment is due, unless the judgment has been otherwise revived as set out in subsection 1 of this section.

In order to determine which subsection applies, we must determine whether the provision in the dissolution decree requiring Husband to "keep in effect at his expense the policy of medical and hospitalization insurance for the wife or a comparable policy" is an award of maintenance. The trial court ruled that this provision was a form of maintenance and we agree.

Insurance is a form of maintenance. Mason v. Mason, 873 S.W.2d 631, 634 (Mo. App. E.D. 1994), citing McAvinew v. McAvinew, 733 S.W.2d 816, 818-19 (Mo. App. W.D. 1987). See also, Huska v. Huska, 721 S.W.2d 120, 121 (Mo. App. E.D. 1986)(holding that medical coverage was intended to provide wife with reasonable needs during pendency of the dissolution, and was therefore maintenance pendente lite); Liberty v. Liberty, 826 S.W.2d 381, 385 (Mo. App. E.D. 1992)(treating order to provide medical insurance as maintenance in applying principles of specificity when enforcing such order); Boettcher v. Boettcher, 870 S.W.2d 876, 880 (Mo. App. W.D. 1993)(holding that the health insurance payment should be deemed to be part of the maintenance award); Rich v. Rich, 871 S.W.2d 618, 624 (Mo. App. E.D. 1994)(determining the trial court awarded wife a sufficient amount of maintenance in the form of medical insurance).

Section 516.350 alone determines the time in which a judgment may be enforced, and the exceptions contained therein operate exclusively to toll its application. Hanff...