Lay v. Lay

• Decision Date: 19 December 1995
• Docket Number: No. 77966,77966
• Citation: 912 S.W.2d 466
• Parties: Terri LAY (Grace), Appellant-Respondent, v. Johnnie W. LAY, Respondent-Appellant.
• Court: Missouri Supreme Court

Page 466

912 S.W.2d 466

Terri LAY (Grace), Appellant-Respondent, v. Johnnie W. LAY, Respondent-Appellant.

No. 77966.

Supreme Court of Missouri En Banc.

Dec. 19, 1995.

Rehearing Denied Jan. 23, 1996.

Ronald K. Barker, Kansas City, for Appellant-Respondent.

Edward F. Aylward, Kansas City, for Respondent-Appellant.

COVINGTON, Judge.

Johnnie W. Lay and Terri Lynn Grace, formerly Lay, both appeal from a trial court judgment granting Ms. Grace's motion for the award of attorney fees and extraordinary support expenses required for the couple's four minor children. After a hearing on the motion, the trial court entered judgment for Ms. Grace in the amount of $3,200.06 for extraordinary medical and dental expenses. The court further awarded her $370.11 for attorney fees incurred in connection with the motion but denied her claim for $5,629.89 in fees incurred in prior proceedings. Mr. Lay appeals the trial court's ruling awarding Ms. Grace extraordinary child support expenses. Ms. Grace appeals the denial of attorney's fees she incurred in prior proceedings. The Missouri Court of Appeals, Western District, affirmed. This Court granted transfer to consider only the question of whether the terms of the separation agreement relating to extraordinary medical, dental and hospital expenses were too vague and indefinite to be enforced. The judgment of the trial court is affirmed.

Ms. Grace filed for dissolution of her marriage to Mr. Lay on November 2, 1987. Later that month the couple entered into a separation agreement that granted custody of their four minor children to Ms. Grace. The agreement specifically required Mr. Lay to maintain hospitalization insurance for the children and to be responsible for all extraordinary medical, dental, and hospital expenses not covered by his insurance. The circuit court dissolved the marriage on December 11, 1987. In its decree, the trial court ordered Mr. Lay to continue to maintain medical and hospitalization insurance coverage for the parties' minor children. The court expressly found that the parties' separation agreement was not unconscionable and decreed that each party "is ordered to perform, execute and do each and all of those things required in the Separation Agreement."

The Lay Appeal

In his appeal, Mr. Lay asserts that the trial court erred in awarding medical expenses because the terms of the separation agreement between the parties were not set forth in full in the dissolution decree. Alternatively, he contends that the terms of the separation agreement regarding medical expenses were overly vague and indefinite such that the court was without jurisdiction to enforce it.

Mr. Lay first maintains that the trial court erred by enforcing the extraordinary medical expense provision of the separation agreement because the terms of the agreement were not fully incorporated into the dissolution decree. The argument is without merit.

In 1974, the General Assembly specifically authorized the use of separation agreements as part of the Dissolution of Marriage Act. Section 452.325, RSMo 1994, which governs the terms required in an agreement and the enforcement of such agreements, reads in pertinent part:

4. If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:

(1) Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or

(2) If the separation agreement provides that its terms shall not be set forth in the decree, only those terms concerning child support, custody and visitation shall be set forth in the decree, and the decree shall state that the court has found the remaining terms not unconscionable.

Prior to the enactment of the Dissolution of Marriage Act, a separation agreement to provide support such as the one in this case was enforceable only in a separate action under traditional contractual remedies. In contrast, under the statute and absent an expressed intent to the contrary, "[u]nless the court finds the terms of the agreement to be unconscionable, they are binding on the court ... [and] are to be incorporated into the court's decree." Haggard v. Haggard, 585 S.W.2d 480, 482 (Mo. banc 1979). Neither the agreement nor the decree in this case provides an expressed intention to prevent the agreement from being incorporated into the decree. The trial court at dissolution found the agreement was not unconscionable and specifically ordered Mr. Lay and Ms. Grace to "perform, execute and do each and all of those things required in the Separation Agreement." The terms of the agreement were, therefore, "enforceable by all remedies available for the enforcement of a judgment...." § 452.325.5, RSMo 1994.

Mr. Lay alternatively contends that the language of the separation agreement regarding his obligations for the children's extraordinary medical expenses is overly vague and incapable of ascertainment. The provisions in the incorporated agreement regarding medical expenses are as follows:

6. Medical Insurance and Expenses. The Non-Custodial Parent shall maintain, either through his place of employment or independently, a hospitalization insurance policy covering the minor children of the parties during the period of his support obligation. The Non-Custodial Parent shall further be responsible for all extraordinary medical, dental and hospital expense required for said minor children. "Extraordinary" for the purposes of this Agreement shall be defined as anything not covered by the Non-Custodial Parent's hospital insurance and, in addition, any medical expenses incurred on behalf of the minor children which exceed twenty dollars ($20.00) per month, per child, per illness. The Custodial Parent agrees to confer with the Non-Custodial Parent before incurring orthodontist expenses.

Mr. Lay argues that, because the phrase "medical, dental and hospital expense" was not defined in either the agreement or the decree, the provision is indiscernibly broad and the trial court's judgment is, therefore, unenforceable.

In support of his contention, Mr. Lay cites to Rodden v. Rodden, 527 S.W.2d 41 (Mo.App.1975), which holds that a judgment, to be enforceable, must be sufficiently definite to be determined precisely by ministerial officers, without a hearing or the consideration of extrinsic evidence.

In Rodden the court held as unenforceable a divorce decree provision requiring that the noncustodial parent pay "all extraordinary medical expenses." Rodden, 527 S.W.2d at 43. Noting the general rule that a money judgment must specify with certainty and definiteness the amount for which it is rendered without necessitating external proof, the court held that the provision was too indefinite to be enforced. "[The] plaintiff would be required to bring in external proof of specific extraordinary medical expenses, thereby making the provision void." Id. at 44; see also Brolinson v. Brolinson, 564 S.W.2d 911, 913 (Mo.App.1978) overruled in part by Payne v. Payne, 635 S.W.2d 18, 22 (Mo. banc 1982) ("[Dissolution decree] must be in such form that the clerk may issue an execution upon which an officer is able to execute ... without requiring external proof and another hearing.").

The rationale of Rodden has been undermined and discredited by subsequent case law. This Court, in Payne v. Payne, 635 S.W.2d 18 (Mo. banc 1982), rejected a similar argument in the context of a maintenance and support provision within a separation agreement, which was subsequently incorporated into a dissolution decree. The decree in Payne incorporated by reference a settlement agreement between the parties requiring that the husband pay "$120.00 weekly to wife for support and maintenance, plus 15% of the sum of husband's total income for the preceding year...." Id. at 20. The wife received a contempt judgment against her former husband for failure to comply with the dissolution decree. On appeal, the husband argued that the judgment was void and unenforceable for the reason that the original decree was based on a contingency and no execution on the judgment could proceed without external proof of the exact amount due. Id. at 21.

Although the terms of the agreement in Payne were uncertain on its face, this Court found that the Dissolution of Marriage Act permitted a trial court to consider external evidence to determine the exact amount due, expressly adopting the reasoning of Bryson v. Bryson, 624 S.W.2d 92, 97 (Mo.App.1981). Payne, 635 S.W.2d at 22. In upholding as enforceable a facially uncertain maintenance provision, Bryson rejected the line of cases holding a dissolution decree void and unenforceable if it is indefinite or uncertain. Bryson, 624 S.W.2d at 96. Instead, the Bryson court held that, if a maintenance provision is part of a decree, it is a valid judgment enforceable under the Dissolution of Marriage Act "by all the remedies available for enforcement of a judgment." Id. at 96, (citing § 452.325.5, RSMo 1994). By having the parties present evidence of the exact amounts due under the terms of the incorporated agreement, "[t]he trial court may upon motion determine the exact amount due in accordance with the agreement of the parties, and then, upon proper application proceed to enforce the judgment." Payne, 635 S.W.2d at 22, (quoting Bryson, 624 S.W.2d at 98). Although Bryson involved a maintenance decree, this Court later specifically extended its rationale to child support awards. Toomey v. Toomey, 636 S.W.2d 313, 316 (Mo. banc 1982). Under Toomey and Payne, if a dissolution decree's terms are uncertain or lack specificity on their face and either a settlement agreement is incorporated into the decree, such that a motion and hearing would determine the exact amount due, or the decree itself can be made certain through evidence adduced after a motion and hearing, the decree is sufficiently certain so as to be...