Hardin v. Hardin
| Decision Date | 05 August 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 512 S.W.2d 851 |
| Parties | Gracie M. HARDIN, nee Swafford, Appellant, v. Alva J. HARDIN, Respondent, and Central States Steel, Inc., Garnishee. 26624. |
| Court | Missouri Court of Appeals |
Michael J. Albano, Graham, Paden, Welch, Martin & Tittle, Independence, for appellant.
Thomas W. Tierney, Kansas City, for respondent.
Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.
This matter arises from an attempt by the appellant, former wife of the respondent, to collect by way of execution and garnishment, delinquent amounts of child support and alimony under a judgment rendered in the court below. The parties will be hereinafter referred to as they were below.
The court below sustained defendant's motion to quash the execution and garnishment and the plaintiff appealed. This order was a final appealable judgment and is properly before us. Flynn v. Janssen, 266 S.W.2d 666, 671 (Mo.1954); McDougal v. McDougal, 279 S.W.2d 731, 735 (Mo.App.1955); Carrow v. Carrow 294 S.W.2d 595, 597 (Mo.App.1956); Section 512.020, RSMo 1969, V.A.M.S.
After this appeal was lodged in this court, the defendant filed a motion to dismiss, which we have previously (and properly) overruled. Defendant has not favored us with a brief and this cause was submitted without oral argument. Under the authority given to us by Rule 81.12(c) V.A.M.R. (formerly Rule 82.12(c)), we have secured from the Circuit Clerk the court file and permanent record of this case in the court below, and those, together with the transcript of the evidence on the motion to quash execution and garnishment and appellant's brief, constitute the record before us. Some detailed review of the history of this case is necessary.
Plaintiff was granted a decree of divorce from the defendant in Division No. 7 of the Circuit Court of Jackson County, Missouri in March of 1961. As a part of that decree, she was awarded the custody of two minor children born of the marriage, together with child support of $17.50 per week for each child, $1.00 per week alimony, and $150.00 for attorney's fee. These payments were to commence on March 23, 1961.
On March 24, 1961, again in Division No. 7 of the court below, an order was entered 'by agreement' reducing the child support award to $10.00 per week per child, such payments to begin March 27, 1961.
On December 11, 1964, upon motion of the plaintiff, this order was again modified in Division No. 7 to provide for the payment of $15.00 per week per child beginning December 11, 1964.
On December 22, 1972, the plaintiff caused a general execution to issue from the court below for $3,305.00 alleged to be due and unpaid as child support, $494.00 unpaid alimony, and $177.00 attorney's fees under the above-described judgments, and specifically the judgment of December 11, 1964. In aid of this execution, a garnishment writ was issued to Central States Steel, Inc., in response to which that company acknowledged an indebtedness to the defendant of $423.32. On February 5, 1973, such garnishee was ordered to pay the $423.32 into court and was thereafter discharged.
On that same day, February 5, 1973, the defendant filed his motion to quash the execution and garnishment, alleging in essence, that the defendant and one Wayne Starr, as attorney for plaintiff, had made an agreement on January 13, 1971 whereby the defendant was to liquidate the 'delinquencies owing by Defendant to Plaintiff in connection with the judgment giving rise to the aforesaid execution and garnishment (which) would be paid by Defendant in agreed weekly installments, which said agreement Defendant has fully and faithfully performed since that time.' It should be noted that the said Wayne Starr was never an attorney of record in this case for the plaintiff; he was not further identified nor was he called as a witness; the alleged agreement was oral and was never approved by the court; and the plaintiff denied that she had ever made such an agreement or authorized it.
It is important at this point to note that the judgment of December 11, 1964 upon which the execution was issued is recorded in the permanent records of the Circuit Court of Jackson County, in Record Book 742 at Page 639, and on the margin of such page appears in longhand:
'December 21, 1972. Given credit up to and including December, 1972.
/S/ Robert Beaird' 1
On February 9, 1973, a hearing was had on defendant's motion to quash execution and garnishment, and such proceeding may be briefly summarized by the statement that it conclusively established that the defendant did not have any accurate records of his payments under the various judgments except those presented to the court by the Child Support Division of the Jackson County Prosecutor's office. His other records, he stated, had been destroyed by vandals and the weather. He did testify, over objection, that he had an agreement with the plaintiff's lawyer, Wayne Starr, that execution would be withheld so long as he paid an extra $5.00 a week on the arrears in child support. He admitted delinquencies far in excess of the $423.32 reached by the garnishment here immediately involved. The plaintiff, on the other hand, testified from a summary of purported records, which she stoutly asserted were accurate (but which were not produced) and her testimony was evidence that the arrears were not exactly the amount set forth in the execution but were far in excess of the funds immobilized by the garnishment.
Be that as it may, the court below on February 26, 1973 entered a judgment sustaining the defendant's motion to quash, from which judgment this appeal was taken by the plaintiff. The basis of this judgment was that the execution and garnishment were void because the record showed by the marginal notation above quoted, was a 'satisfaction of the judgment obligation to a date including the date on which such execution was issued.'
As stated above, although defendant testified as to an agreement to withhold execution with the plaintiff's attorney, Wayne Starr, no further proof of such agreement was proffered nor such attorney further identified. 'Robert Beaird' also remains completely anonymous and mysterious.
On the other hand, the plaintiff specifically disavowed any agreement through Starr or any authorized record satisfaction of the judgment. In the latter respect, the record shows this testimony by the plaintiff:
'THE COURT: Now, at any time up to this time, have you entered on the records in the Circuit Clerk's office, a satisfaction of payments received from your husband on this judgment?
THE WITNESS (Plaintiff): No, sir.
We have concluded that the judgment of the court below must be reversed and the cause remanded for further proceedings in accordance with this opinion.
The appellant in her brief urges six areas wherein she claims the court below abused its discretion. We note only two of these, since our ultimate decision is based upon an entirely different reason, not involving discretion at all, but rather, for the reason that the court's decision is erroneous as a matter of law.
Plaintiff asserts that the court erred in taking judicial notice of the purported marginal satisfaction of the judgment of December 11, 1964, above quoted, since this record was not introduced in evidence so as to become part of the transcript of the evidentiary hearing below. We do not agree. It was entirely proper for the trial court to judicially notice this record. It has long been the law that courts may (and should) take judicial notice of their own records in prior proceedings which are (as here) between the same parties on the same basic facts involving the same general claims for relief. Such courts may do so on their own motion or at the request or suggestion of a party. Arata v. Monsanto Chemical Company, 351 S.W.2d 717, 721(5) (Mo.1961); Vogel v. Vogel, 333 S.W.2d 306, 310(6, 7) (Mo.App.1960); Munday v. Thielecke, 483 S.W.2d 679, 681--682(2) (Mo.App.1972); Hawkins v. Hawkins, 462 S.W.2d 818, 826 (10, 11) (Mo.App.1970). Likewise, this court, under Rule 81.12(c) can consider such record on appeal.
The other argument advanced by plaintiff which should be noted here is her position that the fact that she may have claimed total sums due from defendant in excess of the actual amount due or that the execution process is inaccurate in other particulars, does not require that the execution and garnishment be quashed, in toto. With this position, we agree. The execution was upon the judgment of December 11, 1964 and admittedly the unpaid amounts due thereunder far exceeded the amount of $423.32 secured by garnishment. It has long been the law in this state that if a judgment creditor seeks an execution and garnishment in aid thereof in an amount in excess of the judgment amount actually due, the debtor may move to quash and the court should quash only so much thereof as...
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