Helfenbein v. Helfenbein, 64188

• Citation: 871 S.W.2d 131
• Decision Date: 01 March 1994
• Docket Number: No. 64188,64188
• Parties: Sally HELFENBEIN, Petitioner/Appellant, v. Stanley HELFENBEIN, Respondent/Respondent.
• Court: Court of Appeal of Missouri (US)

Page 131

871 S.W.2d 131

Sally HELFENBEIN, Petitioner/Appellant, v. Stanley HELFENBEIN, Respondent/Respondent.

No. 64188.

Missouri Court of Appeals,

Eastern District,

Division One.

March 1, 1994.

William Gillespie, John T. Sluggett II, Schumaier & Sluggett, Clayton, for petitioner-appellant.

Jeremiah Lawrence Phelan, Jr., Clayton, for respondent-respondent.

REINHARD, Judge.

Wife appeals from the trial court's denial of her motion to revive judgment and from the court's order granting husband's motion to quash execution on real property jointly owned by husband and current wife. We reverse and remand in part, and affirm in part.

On March 16, 1976, the Superior Court of California, County of Los Angeles, entered an Interlocutory Judgment dissolving husband and wife's marriage. A final judgment was entered on July 21, 1976.

On October 15, 1981, a Stipulation for Consent Judgment (hereinafter consent judgment) was filed in St. Louis County Circuit Court. The stipulation provided, in relevant part:

STIPULATION FOR CONSENT JUDGMENT

Come now the parties individually and by and through their attorneys and stipulate as follows:

1. That by consent registration of the foreign judgment hereinbefore prayed may be entered by this Court as a Missouri judgment.

2. The parties agree that Respondent will pay to Petitioner the sum of Four Thousand Dollars ($4,000.00) in full and complete settlement and satisfaction of all sums now due and owing or alleged to be due and owing by Respondent to Petitioner in connection with said foreign judgment up to and including the month of October, 1981.

3. Petitioner by and through her attorney agree to immediately release the garnishment now pending against Respondent's employer Rockwell International Corporation as of October 15, 1981 and that Petitioner shall be solely responsible for any attorney's fees and costs incurred in connection with said garnishment action.

4. Respondent agrees to be responsible to begin to make periodic payment for spousal support as per the original judgment to Petitioner; said payments to begin on November 1, 1981. Petitioner's attorney is to provide Respondent or his attorney with Petitioner's current address or an address to which said payments can be made.

5. Both parties agree and understand that the original judgment is still binding on both parties until modified or terminated by an appropriate order of the Court of original jurisdiction namely; the Superior Court of the County of Los Angeles, State of California; and that by this registration herein the Circuit Court of St. Louis County, Missouri does not obtain jurisdiction to alter or modify said judgment.

On December 3, 1992, wife caused to be issued a writ of garnishment and a writ of execution on real property purchased by husband and new wife in 1979 and titled at that time in their joint names. On April 15, 1993, wife filed a Motion for Revival of Judgment. She alleged that husband had stopped making maintenance payments starting with the payment due April 15, 1983. She alleged husband was $17,775.00 in arrears.

Husband filed a motion to quash the execution and filed a reply to wife's motion to revive. He also filed an affidavit in support of his reply to the motion of revival, in which he stated he had not made any payments to wife subsequent to the consent decree. The circuit court denied wife's motion to revive and granted husband's motion to quash execution. Wife appeals both actions.

In her first point on appeal, wife asserts the circuit court erred in denying her motion for revival in that the court:

... ignored the plain meaning of RSMo Section 516.350 (1986), as amended in 1982, judicially interpreted to hold that where judgment provides for periodic maintenance payments, the ten-year statute of limitations period runs from the time that a particular payment was due, and not from the date of the original judgment.

We agree with wife that the court erred in denying her motion to revive. In so doing the court evidently accepted husband's argument that subsection 2 of § 516.350 ¹ was inapplicable because over ten years had passed since the entry of the consent judgment. Section 516.350 provides:

1. Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, 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...