Gray v. Jackson, No. 15852

CourtCourt of Appeal of Missouri (US)
Writing for the CourtHOGAN; FLANIGAN, P.J., and MAUS
Citation773 S.W.2d 202
PartiesDana (Jackson) GRAY, Plaintiff-Respondent, v. Robert B. JACKSON, Defendant-Appellant.
Docket NumberNo. 15852
Decision Date19 June 1989

Page 202

773 S.W.2d 202
Dana (Jackson) GRAY, Plaintiff-Respondent,
v.
Robert B. JACKSON, Defendant-Appellant.
No. 15852.
Missouri Court of Appeals,
Southern District,
Division Two.
June 19, 1989.
Motion for Rehearing or Transfer
Denied July 12, 1989.

Page 203

Louis J. Nolan, Springfield, for defendant-appellant.

Robert B. Stillings, Springfield, for plaintiff-respondent.

HOGAN, Judge.

In this case Robert B. Jackson, to whom we shall refer as the defendant, appeals from an order of the Circuit Court of Greene County denying a motion to quash garnishment. We have concluded that we must affirm the judgment because we cannot, upon the record presented, determine if error was committed without resort to substantial speculation. In fairness to the parties, we must explain the basis for our decision.

The parties to this action, Dana (Jackson) Gray, to whom we shall refer as the plaintiff, and defendant Robert B. Jackson were divorced in the Circuit Court of Greene County on October 2, 1972. Dana was awarded custody of the parties' minor child and $60 per month as child support. The judge's docket sheet, included in the original legal file, indicates that no payment of child support was made from the date of the decree to July 2, 1987.

On July 2, 1987, the Division of Child Support Enforcement issued an administrative order based on the original decree. The Division, to which we shall refer as the Agency, determined the past-due support or arrearage to be $6,720. An order to Robert Jackson's employer to withhold and pay over the sum of $90 per month, $60 as support and $30 in discharge of the arrearage, was issued the same day. The orders recite that they were issued pursuant to § 454.476.1 1 and § 454.476.3. 2

Jackson requested an administrative hearing as provided by § 454.476.4. On March 9, 1988, an administrative hearing was held. Upon proof not included in the

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record in identifiable form, the Agency concluded that from October 2, 1972, through June 30, 1987, $10,620 in child support became due under the original court order. The Agency concluded, however, that absent revival § 516.350.2 prohibits collection of payments after the expiration of 10 years from the date the support payment becomes due. In this case, the Agency concluded, the original decree for support was revived by its order of July 2, 1987. The Agency therefore concluded that only those payments which had become payable since July 1977 were collectible; payments due prior to that time were presumed to have been paid. The Agency further found, again upon evidence not before us in identifiable form, that from July 2, 1977, through July 2, 1987, $7,320 in child support was due; that from October 2, 1972, through June 30, 1987, the defendant had been credited with child support payments in the amount of $4,050 and that as of June 30, 1987, the defendant owed a child support arrearage of $3,270. It was ordered that the Agency revise its administrative order and its order to withhold accordingly. This order, which was incorporated in an administrative transcript, is dated April 27, 1988. The defendant was advised that he had a right to judicial review under the provisions of Chapter 536. On May 25, 1988, a petition for review of the order entered after the administrative hearing was filed in the Circuit Court of Greene County. On July 22, 1988, that court entered a summary judgment, about which we shall comment further.

On September 1, 1987, while the administrative proceeding was pending, the plaintiff filed a motion to modify the original decree. The gist of the motion was that the parties' minor child was now an adolescent male and that fact, among others, constituted a change of circumstances so substantial and continuing as to make the terms of the original decree unreasonable within the meaning of § 452.370.1. An answer to this motion was eventually filed by leave of court on November 6, 1987. Neither the motion nor the answer directly raises the question of the amount of past-due support which was in issue in the administrative proceeding. Certain cryptic docket entries, particularly those of April 11, 1988, and April 28, 1988, suggest, but certainly do not compel, the conclusion that the amount of arrearage was an issue tendered on the motion to modify. If any testimony was heard or any proof was received by the trial court on the motion to modify, we have not been favored with a transcript of that testimony nor with copies of any documents indicating they were received in evidence. On March 10, 1988, a writ of garnishment in aid of execution was issued at the plaintiff's instance. The amount plaintiff sought to garnish was $13,245.90. Of this amount, $6,315 represented back-due child support; the interest due was calculated to be $6,930.90.

On March 24, 1988, a motion to quash the garnishment was filed in that division of the circuit court in which the motion to modify was pending. It was averred in the motion, among other things, that any amounts claimed as child support due prior to July 7, 1977, were barred by the provisions of § 516.350.2; that any interest claimed on amounts due prior to July 7, 1977, were barred by the same statute and, repetitiously, that both the arrearage due and the interest due thereon had been incorrectly calculated. The defendant also suggested that the Agency's determination of the amount of arrearage due was controlling. On June 9, 1988, the trial court issued an order denying the motion to quash garnishment and specifically finding that as of February 1988, the defendant owed the petitioner the sum of $6,285 as child support and in addition, $6,930.90 as interest on the past-due child support. The defendant thereupon appealed to this court.

Two issues have been tendered in this court. The plaintiff suggests the appeal should be dismissed as moot because, if the order denying the motion to quash garnishment is reversed, the order of the circuit court granting summary judgment for the plaintiff upon the petition for review of the administrative order would remain in effect. The appeal, plaintiff suggests, is moot, because no effective relief

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could be granted by reversing the circuit court's refusal to quash the garnishment. We agree that an appeal may be dismissed as moot if the court's decision can have no practical and enforceable consequences between the...

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