Karleskint v. Karleskint
| Decision Date | 19 December 1978 |
| Docket Number | No. 39642,39642 |
| Citation | 575 S.W.2d 845 |
| Parties | Patricia KARLESKINT, Appellant, v. John C. KARLESKINT, Respondent. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Ellsworth W. Ginsberg, Clayton, for appellant.
Steven M. Hamburg, Summers & Compton, Clayton, for respondent.
Plaintiff, Patricia Karleskint, appeals from an order of the Circuit Court entered August 26, 1977, quashing an execution and garnishment issued to the employer of her former husband, defendant, John Karleskint.
The parties were divorced on January 15, 1971. The divorce decree left title to the house and two automobiles to the defendant.
On November 26, 1976, the defendant filed a motion to modify the decree, claiming the plaintiff to be an unfit mother and requesting the custody of the children. The plaintiff filed a motion to dismiss husband's motion to modify based on defendant's failure to pay child support. In January of 1977, plaintiff requested execution and garnishment.
On April 19, 1977, a hearing was held on the motion to dismiss the motion to modify. On June 24, 1977, plaintiff again requested an execution and garnishment alleging that as of December 23, 1977, there was "due and owing from the Respondent to Petitioner the sum of $14,866.00" as and for child support. On July 14, 1977, defendant moved that the court quash the garnishment because "all or substantially all of the alleged indebtedness claimed by the Plaintiff has been paid or satisfied . . . ." The transcript shows that on August 26, 1977, the motion to quash garnishment was called, heard and submitted. The court sustained the motion and the plaintiff appeals.
On appeal, plaintiff contends the trial court erred in sustaining defendant's motion to quash garnishment because defendant failed to support his affirmative defenses with substantial evidence. In this court tried case we must sustain the decree 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." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976).
No evidence was presented on defendant's motion to quash, but the parties agree that we are to consider the evidence which they presented at plaintiff's motion to dismiss defendant's motion to modify. 1 At that hearing only the plaintiff presented evidence. She testified that defendant had made no child support payments (other than four checks of $25.00 each); that in 1971 defendant transferred to her the title to the automobile she was driving at the time of the divorce, as well as his equity in one-half interest in their house; that in 1971 when she applied for welfare, the welfare department contacted defendant; that in 1973 she contacted an attorney relative to the defendant's non-payment of child support and that he wrote defendant; that seven months before defendant filed his motion to modify, she and her second husband requested that defendant move into their home, which he did; that during that time defendant acted as a live-in babysitter for the children (but plaintiff also testified that such action by defendant was not in consideration of forgetting past due child support payments); and that from 1973 to 1977 she made no effort to collect support payments.
The defendant had the burden of proving his pleaded affirmative defenses of payment or satisfaction. Stringer v. Reed, 544 S.W.2d 69, 73 (Mo.App.1976).
In his brief on appeal, the defendant submits that the trial court can be sustained on either of two theories, his first theory being based on an agreed compromise and settlement for adequate consideration of past due child support payments. However, in oral argument before this...
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Penney v. White
... ... Such an accord and satisfaction is an affirmative defense which the proponent (the husband here) has the burden to prove. Karleskint v. Karleskint, 575 S.W.2d 845, 846(1-5) (Mo.App.1978). The husband made no plea to the motion of the wife to adjudge him in contempt for willful ... ...
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Grommet v. Grommet
...for an agreement to alter court ordered support payments, a contention asserted by respondent herein. In Karleskint v. Karleskint, 575 S.W.2d 845 (Mo.App.1978), Rodgers is cited as authority for Missouri's adoption of the rule that waiver by acquiescence may be interposed as a defense to an......
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Tudor v. Tudor
...in the failure of the defendant to make payments, if he did fail to make payments." To this point defendant cites Karleskint v. Karleskint, 575 S.W.2d 845 (Mo.App.1978) and Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974). These cases illustrate that waiver by acquiescence may be interposed......
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Cavins v. Cavins, 15354
...they had no current address for the wife. The husband relies on Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974) and Karleskint v. Karleskint, 575 S.W.2d 845 (Mo.App.1978). The "concept called waiver by acquiescence" is well and thoroughly analyzed in the cases discussed in Grommet v. Gromm......