Hart v. Hart

• Decision Date: 06 July 1976
• Docket Number: No. 37031,37031
• Citation: 539 S.W.2d 679
• Parties: Deborah Gay HART, Plaintiff-Garnishor-Appellant, v. James Edward HART, Defendant-Respondent, Southwestern Bell Telephone Co., Garnishee. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 679

539 S.W.2d 679

Deborah Gay HART, Plaintiff-Garnishor-Appellant, v. James Edward HART, Defendant-Respondent, Southwestern Bell Telephone Co., Garnishee.

No. 37031.

Missouri Court of Appeals, St. Louis District, Division Three.

July 6, 1976.

Harold G. Johnson, St. Ann, for appellant.

Irvin Dubinsky, St. Louis, for respondent.

SIMEONE, Presiding Judge.

This is an appeal by plaintiff-appellant, Deborah Gay Hart, from an order of the Circuit Court of St. Louis County entered on March 5, 1975, which sustained a motion to quash execution and garnishment filed by defendant-respondent, James Edward Hart, and which released an execution therefore issued in favor of appellant, Mrs. Hart.

On May 19, 1970, James and Deborah Hart were 'divorced' by the Circuit Court of St. Louis County. The wife, Deborah, was awarded custody of their minor child, Stacey Wynne, and $20.00 per week child support. Under the decree, Mr. Hart was given visitation rights on Sundays. The original decree was silent as to any prohibition against removing the child from the jurisdiction of the state of Missouri. Mr. Hart made the support payments for about two years, but in 1972 he discontinued the payments. On January 14, 1975, Mrs. Hart filed her affidavit in support of her request for garnishment and sought garnishment in aid of execution for the accrued installments amounting to $2,440.00. On February 18, 1975, Mr. Hart moved to quash garnishment on several grounds. ¹

A hearing was held on the motion, and both parties testified. The evidence showed that during the two years Mr. Hart made payments he saw the child 'fairly regularly' but that he discontinued the support payments after Mrs. Hart and the child moved to California sometime in September, 1972, and after an alleged 'agreement' between the parties to discontinue the support payments on condition that Mr. Hart would forego his rights of visitation. Any such agreement was denied by Mrs. Hart.

Mrs. Hart and the child moved to California in 1972 and returned to Missouri in October, 1974. During the time Mrs. Hart and the child were in California, Mr. Hart would visit with the child on Christmas and on holidays when the child came to Missouri. During the two years, 1972--1974, no demand was made for support money by Mrs. Hart, and, according to the testimony of Mr. Hart, Mrs. Hart refused to permit him to see the child while in California but not in St. Louis. During the sojourn in California, Mrs. Hart had no 'communication or correspondence' with her ex-husband, except that she mailed cards on holidays to his mother's address. Mrs. Hart stated that she 'put the return address on cards and said, 'Anytime you'd like to write to Stacey or call Stacey or you would like to make any kind of contract, you're free to. You have my phone number. '' Mrs. Hart admitted that she had not 'talked' to her ex-husband in 'maybe, 3, 3 1/2 years.' But she denied she 'ever (had) any conversation with him regarding child support or his not having made child support, or having to make child support payments.' She denied having any conversation with Mr. Hart wherein she made the comment, "You don't have to make child support payments, then you don't have to hassle me," as testified to by Mr. Hart. She admitted that she did not seek permission of the court to remove the child to California and admitted that during that time the husband 'couldn't see the child or couldn't take the child to his parents' home.' During the time they were in California, she admitted that she did not make 'any attempt . . . to obtain child support from (her) ex-husband . . .' and that the child's needs were cared for. During this time Mr. Hart did not exercise his visitation rights but did see the child when in Missouri at the wife's parents' home.

After the hearing, the trial ocurt sustained Mr. Hart's motion to quash and release the execution and garnishment. The court gave several reasons: (1) Mrs. Hart removed the child from the state without permission of the court, in violation of the court order, (2) Mrs. Hart deprived the husband of visitation rights, and (3) Mrs. Hart made no demand upon the husband during the period that the child was removed from the state, in violation of the order of court.

Mrs. Hart appealed. On this appeal, she contends that the trial court erred in sustaining the motion because (1) she was not required to obtain prior court approval to leave the state when the decree did not restrict her from moving from the state, (2) any agreement to waive child support payments in consideration of the husband waiving his rights of visitation is invalid without court approval, and (3) the court is without jurisdiction to terminate or cancel the accrued and unpaid child support payments. The respondent, of course, contends otherwise and sets forth in his brief a number of theories justifying the trial court's conclusion.

Our duty on this appeal is governed by certain basic principles. Rule 73.01(3) requires us to review the cause upon both the law and the evidence and to give due regard to the opportunity of the trial court to have judged the credibility of the witnesses. This Rule, effective January 1, 1975, was recently construed by our Supreme Court en banc in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). It was there held that Rule 73.01 construed to mean that the decree of judgment of the trial court will be sustained unless (1) there is no substantial evidence to support it, (2) it is against the weight of the evidence, (3) it erroneously declares the law, or (4) it erroneously applies the law.

We reverse and remand the cause with directions to overrule the motion to quash garnishment.

In a proceeding such as this the paramount consideration is not the desires or difficulties of the parties, as parents, but the welfare of the child of this broken marriage.

First, as to the matter of removal of the child from Missouri to California, ordinarily courts are reluctant, as against the policy of the law, to permit the removal of a minor child to another jurisdiction because upon entry of the decree the child becomes a ward of the court, and because upon the child's removal, any subsequent order may be difficult, if not impossible, to enforce. But the obstacles caused by nonresidence are not insuperable, and the removal may be judicially permitted where it is made clear that the best interests of the child will be thereby subserved. Northrup v. Sieve, 517 S.W.2d 470, 474 (Mo.App.1974), and cases cited therein; I_ _ v. B_ _, 305 S.W.2d 713, 719 (Mo.App.1957); Stuessi v. Stuessi, 307 S.W.2d 380, 381 (Mo.App.1957); Baer v. Baer, 51 S.W.2d 873, 878 (Mo.App.1932).

In this case, the primary issue presented is whether the husband is relieved from child support payments when the custodial parent removes the child from the state, thus in effect practically depriving the other parent from visiting the child, which rights he has pursuant to the original decree. We hold that Mr. Hart is not relieved from child support payments, even though the child is removed to another jurisdiction. ²

Under the new dissolution of marriage law, which applies to these 'proceedings,' § 452.415, subsection (1), it is expressly stated that if a party fails to comply with a provision of a decree the obligation of the other party to make payments for support is not suspended, but he may move for an appropriate order of the court. § 452.365. Although the wife may have violated the decree by removing the child to another state, the husband was not without remedy. For the best interests of the child, the obligation of the husband, under the present law, is not suspended, even though the wife failed to comply with a provision of the decree.

Second, the parties are not authorized to make an agreement to settle or compromise child support payments. The payments are for the benefit of the child. Cervantes v. Cervantes, 239 Mo.App. 932, 203 S.W.2d 143, 146 (1947); State v. Arnett, 370 S.W.2d 169, 174 (Mo.App.1963); Swift v. Leonard, 420 S.W.2d 53, 56 (Mo.App.1967). Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974), is factually distinguishable. At the time the agreement was made, the payments were for future, as distinguished from past, payments.

Third, the fact that Mrs. Hart made no demand during the California sojourn does not relieve the husband from making support payments for the child. Laches, as a defense in such proceedings, has often been rejected. See cases collected in Annot., 70 A.L.R.2d 1250, 1269 (1960).

Under all the circumstances, the original order requiring support payments cannot be ignored or modified by the parties themselves. One alleged violation does not excuse another.

Parties to a divorce proceeding may not inter se ignore or disregard proper orders of judicial tribunals. Adequate procedures are available to modify, as needed, judgments of courts to meet the changing conditions of divorced parties.

The judgment is reversed and the cause remanded with directions to overrule the motion to quash execution and garnishment.

KELLY, J., dissents in separate opinion.

GUNN, J., concurs.

KELLY, Judge (dissenting).

I respectfully dissent. There were various theories upon which the trial court could have reached the result it did, both on legal grounds and on issues of credibility.

One of the important issues presented is whether Mr. Hart is relieved from child support payments when Mrs. Hart removed the child from the state, thus in effect depriving Mr. Hart of his visitation rights pursuant to the...