Grommet v. Grommet

• Citation: 714 S.W.2d 747
• Decision Date: 17 June 1986
• Docket Number: No. 49792,49792
• Parties: David W. GROMMET, Plaintiff-Respondent, v. Mary L. GROMMET, Defendant-Appellant.
• Court: Court of Appeal of Missouri (US)

Page 747

714 S.W.2d 747

David W. GROMMET, Plaintiff-Respondent, v. Mary L. GROMMET, Defendant-Appellant.

No. 49792.

Missouri Court of Appeals,

Eastern District,

Division One.

June 17, 1986.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 16, 1986.

Application to Transfer Denied Sept. 16, 1986.

Robert S. Moss, St. Louis, for defendant-appellant.

Theodore S. Schechter, Frances M. Luehrman, Schechter & Watkins, Clayton, for plaintiff-respondent.

CARL R. GAERTNER, Presiding Judge.

Respondent David W. Grommet filed a motion to quash an execution and garnishment which had been issued at the request of appellant, Mary L. Grommet, to collect arrears in maintenance under a previous decree of dissolution. The trial court found that appellant acquiesced to payments less than those specified in the order of dissolution and quashed the garnishment with respect to the amounts allegedly in arrears after the date appellant expressed this acquiescence. Appellant seeks reversal contending the trial court's judgment is both against the weight of the evidence and is a misapplication of the law.

The marriage of the parties was dissolved in 1975. The decree provided for maintenance after June, 1978, in the amount of $300.00 per month. Respondent's payments were made sporadically and in varying amounts in 1979 and most of 1980. Respondent testified that in October, 1980 he called appellant and informed her that he would thereafter only be able to pay half of his obligation, $150.00 per month. According to respondent, appellant agreed to this lesser amount. Appellant, on the other hand, testified that she never agreed to the lesser payments. In fact, $150.00 per month was paid consistently by respondent after the date of the alleged agreement. Appellant accepted $150.00 per month without protest from November, 1980 until May, 1983, when she requested her attorney to write a letter seeking resumption of the original $300.00 per month obligation. Upon receipt of this letter, respondent contacted his attorney who subsequently filed a motion to modify. The court granted respondent's motion and ordered maintenance payments of $150.00 per month. No appeal was taken from this order and the modification is not at issue here.

After the order of modification, appellant filed an execution and garnishment in April, 1984, seeking arrearages in the amount of $10,509.26. Respondent filed a motion to quash the garnishment on the ground that the judgment had been fully paid and satisfied except for $600.00, which he conceded was still due. The motion was later amended, by leave of court, to allege that there had been an accord and satisfaction, compromise and settlement, waiver and/or waiver by acquiescence.

The trial court found that in 1979, $3,450.00 of the $3,600.00 maintenance due had been paid; the arrearage for 1979 thus amounted to $150.00. The trial court also found that $300.00 per month was due in 1980 through October. The court further found that appellant expressed her acquiescence to the $150.00 per month maintenance payments during her October, 1980 phone conversation with respondent. The court stated that such acquiescence amounted to an accord and satisfaction and that the maintenance due for 1980 was thus $3,300.00 ($300.00 per month through October; $150.00 per month thereafter), $1,575.00 of which had been paid, leaving an arrearage of $1,725.00 for 1980. Because of respondent's payments of $150.00 per month after October, 1980, no further arrearage was found.

Appellant contends the trial court's finding of acquiescence was against the weight of the evidence and that the finding that such acquiescence amounted to an accord and satisfaction was a misapplication of the law. Our review is governed by the well-known standards set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976), to affirm the judgment of the trial court "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Moreover, the trial court may "accept or reject all, part or none of the testimony" of any witness, and we defer to his assessment of credibility. Dutton v. Dutton, 668 S.W.2d 585, 589 (Mo.App.1984). Within these narrow parameters, we review the findings and conclusions of the trial court The court, being now duly advised of and having considered the premises, finds that subsequent to October 5, 1980, and in the same month, [appellant] acquiesced when [respondent] advised her that, in the future, he would only be able to pay One Hundred Fifty Dollars ($150.00) per month maintenance. Such acquiescence amounts to an accord and satisfaction and the [respondent] has sustained his burden by a preponderance of the evidence.

A thorough review of the testimony reflects support for the factual finding that appellant acquiesced in the reduced payment. Respondent testified that appellant expressly agreed to accept payments of $150.00 per month in October, 1980. Appellant denied making such an agreement. The trial court, as it was free to do, obviously accepted respondent's testimony and rejected that of appellant. This finding is inferentially supported by the evidence of respondent's consistent payments of $150.00 per month after October, 1980, and appellant's acceptance thereof without protest for 2 1/2 years. Accordingly, we defer to the trial court's finding of fact and turn to its conclusions of law.

In holding that acquiescence in the reduction of payments amounted to an accord and satisfaction, the trial court erroneously declared the law. The agreement described by respondent related not to past due monthly payments but only to those coming due in the future. There can be no accord and satisfaction of a judgment which will accrue in the future. Rodgers v. Rodgers, 505 S.W.2d 138, 145 (Mo.App.1974).

Respondent argues, however, that the conclusion of the trial court regarding accord and satisfaction is a "legal label" which is not determinative. Relying on the principle that a court-tried case should be affirmed if the judgment is correct on any theory, Rosenblum v. Gibbons, 685 S.W.2d 924, 927 (Mo.App.1984), he urges that we sustain the trial court's judgment on the basis of waiver by acquiescence.

The phrase "waiver by acquiescence" has appeared in recent years in virtually every opinion concerning motions to quash executions on judgments for periodic maintenance and child support. At first glance, it would appear that such cases have reached widely disparate results. A thorough review of the cases, however, discloses a consistent application of the concept limited to those cases in which particular facts warrant the invocation of equitable considerations in order to avoid a harsh and unjust result.

The cases frequently cited as the underlying basis for the concept of waiver by acquiescence are Meyer v. Meyer, 493 S.W.2d 42 (Mo.App.1973), and Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974). In Meyer, the rule that a father may not provide child support in any manner other than direct payments to the mother of the amounts ordered by the court was held subject to the exception that he should receive credit for payments made directly to the children, or to others for their benefit, provided such payments were made with the express or implied consent of the mother or under a compulsion of circumstances. 493 S.W.2d at 45. It is noteworthy that the exception was applied only to past due, not future, payments which were in fact made by the father, albeit not in conformity with the letter of the decree.

In Rodgers, a mother's agreement to forego past due child support in consideration of the father's signing of a consent for the adoption of the children by mother's new husband was held to be a valid settlement of the past due debt. The additional agreement by mother to forego future child support was found to be unenforceable as an invalid attempt by the parties to modify a judgment for child support without the prerequisite judicial consideration of the welfare of the children. However, the court noted the equitable considerations flowing from the facts that the mother had permitted the father to believe the adoption had been consummated, although it had not, for a period of four years, that by reason of this she had deprived him of his rights of visitation, and that in reliance upon her tacit misrepresentation, father had liquidated the trust account he had set up for the children. Additionally, the mother admitted it was not really past due support she was seeking; rather, it was an increase in the original award so that she could meet the expenses of college education. In light of these circumstances, the court held that equitable considerations estopped the mother from changing the position she had maintained for so many years regarding past due support payments. The court affirmed the trial court's finding that the mother "had acquiesced in the [father's] failure to remit the child support payments as they became due and owing and that she thereby waived the right to enforce these payments...." Rodgers, 505 S.W.2d at 145. Although using the term "waiver," the court actually invoked the concept of equitable estoppel.

In Hart v. Hart, 539 S.W.2d 679 (Mo.App.1976), the trial court sustained a father's motion to quash an execution for unpaid child support on evidence of an agreement to discontinue support payments if the father would forego his visitation rights, wrongful removal of the child to California by the mother, and no demand for payment of support for two years. This court reversed, adhering to the general rule that the original court order may be neither ignored nor modified by the parties themselves. Rodgers was said to be "factually distinguishable." Id. at 682.

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