Loveland v. Henry

• Decision Date: 22 October 1985
• Docket Number: No. 49286,49286
• Citation: 700 S.W.2d 846
• Parties: Dianne LOVELAND, Plaintiff-Respondent, v. William Gene HENRY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 846

700 S.W.2d 846

Dianne LOVELAND, Plaintiff-Respondent, v. William Gene HENRY, Defendant-Appellant.

No. 49286.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 22, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Nov. 21, 1985.

W. Morris Taylor, Frances Maudean Luehrman, Clayton, for defendant-appellant.

Patricia Huber Thomas, St. Charles, for plaintiff-respondent.

KAROHL, Presiding Judge.

Former husband appeals from a judgment awarding former wife child support of $145.00 per week per child for two children and child support arrearages of $28,148.98. Wife's petition was filed pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA) in Escambia County, Florida. ¹

Appellant husband asserts the following four errors by the trial court. First, the award of $28,148.98 in arrearages is not supported by the evidence. He claims the original decree was vague and uncertain and the external proof submitted to the court was insufficient to calculate the exact amount due. Second, the award of $28,148.98 was erroneous in that wife acquiesced to a payment of lesser amount and waived the past amounts owed. Third, the child support award of $145.00 per week per child was erroneous because husband was unable to pay this amount and there was no evidence presented as to needs of the children or resources of the custodial parent. Fourth, the court failed to give husband credit for a flute and bedroom furniture purchased for the children, car payments to the wife and money given directly to the children for school clothes.

The parties were married in 1968 in Wright City, Missouri and divorced December 1980 in Pensacola, Florida. Two children were born of the marriage, Kimberly Ann, fifteen years old at time of trial and Christine Dianne, twelve years old at the time of trial. In November 1980, the parties entered into a separation agreement which provided:

The wife shall receive as support for the minor children of the parties the sum of $180.00 (ONE HUNDRED FORTY-FIVE DOLLARS AND NO CENTS) per child per week ... In the event the husband shall return to the continental United States to follow his employment, the child support shall be reduced by 25% (TWENTY-FIVE PERCENT).

The agreement was incorporated by reference into the final judgment of dissolution and wife was awarded custody of the two children.

Wife did not appear in Missouri for trial. Her testimony was elicited by the court in Florida and sent to Missouri with her certified petition. Husband testified as plaintiff's witness that in March 1981, husband, wife, and their present spouses, who were formerly married to each other, entered into an oral modification agreement. The agreement provided husband would pay $100.00 per week for both children and wife's present husband would pay no support to husband's present wife for their three children. The only evidence of the agreement is husband's testimony. Husband paid according to the agreement until October 1981. At that time husband and wife executed a written agreement (without involving their present spouses) whereby husband would pay $150.00 per week for both children. This agreement also provided the support was to be reduced to $75.00 per week when Kimberly, the oldest child, attained the age of eighteen. Additionally, the agreement was to be "reviewed annually for possible adjustments". There is no dispute as to the existence of the written agreement. Wife admitted the agreement in her petition, husband testified to it at trial, it was entered as an exhibit into evidence, and the trial judge acknowledges it in his findings of facts and conclusions of law.

Husband testified that he paid wife according to both the oral and written agreements. In addition, husband paid all the children's medical bills, $263.02 for a flute, $1,169.91 for bedroom furniture, $812.14 for mobile home payments, $644.00 for wife's car payments, $250.00 to each child for school clothes, $200.00 for clothes while the children were in his custody, and some traveling expenses.

From the time of the divorce through the time of trial husband was employed at Emerson Electric as a senior field engineer. Husband's employment required him to travel extensively outside the United States. At the time of dissolution husband received $292.00 per week net income plus an additional 25% bonus on some of his overseas trips. At the time of trial husband received net income of $447.28 per week.

In October 1982, wife filed her petition in Florida pursuant to URESA requesting $180.00 per week per child for child support and arrearages in the amount of $15,000. The case was certified to Missouri from Florida. The Missouri trial court granted child support of $145.00 per week per child and $28,148.98 in arrearages.

Husband first contends the trial court erred in interpreting the original divorce decree in that there was insubstantial evidence to clarify the terms or to determine the amount of child support accrued.

Husband claims the trial court was unable to determine the amount owed since the testimony elicited by husband at trial did not specify exactly his departing and returning dates to and from the United States. According to the divorce decree child support was to be reduced by 25% when husband was in the continental United States. Husband relies on Payne v. Payne, 635 S.W.2d 18, 22 (Mo. banc 1982) to support his argument. His reliance is misplaced. Payne stands for the proposition that it is within the power of the trial court to receive external proof to determine the exact amount due for a maintenance judgment. Id. at 22 citing Bryson v. Bryson, 624 S.W.2d 92, 97 (Mo.App.1981). A decree is indefinite, uncertain and unenforceable if the amount of the judgment cannot be ascertained without resort to external proof beyond the record or another hearing. J.A.A. v. A.D.A., 581 S.W.2d 887, 898 (Mo.App.1979). Although the findings of facts and conclusions of law do not precisely identify how many weeks husband was in the United States, the court received testimony from husband regarding the duration of each of husband's trips outside the United States during the relevant time period. Upon close review of the record the trial court had sufficient evidence to calculate the weeks husband was in the United States to determine the amount of support owed to wife.

Husband's second point on appeal claims wife acquiesced to child support payments less than that designated in the divorce decree and so waived past due amounts. The basis of husband's argument is that since the parties entered into an agreement to reduce the child support payments and husband paid according to those agreements wife is estopped from seeking judgment under URESA, Chapter 454 RSMo 1978, on the difference between the divorce decree and the agreement.

The law in Missouri is stated clearly. Future child support obligations may not be altered by contract or agreement between the mother and father. Only a court has the power to alter future support payments. Holt v. Holt, 662 S.W.2d 578, 580 (Mo.App.1983). The parties may enter into a binding agreement in which they compromise amount of past due support; however, they may not enter into an agreement to reduce support which will accrue in the future. Id. at 580. The trial court retains jurisdiction to modify a child support award upon a showing of a substantial change of circumstances which makes the existing terms unreasonable. See § 452.370 Cum.Supp.1982. Here, the court was never given the opportunity to exercise its jurisdiction to examine evidence of changed circumstances and to determine whether a modification of the original support decree in accordance with the agreement was reasonable. The court was not bound to recognize the agreement executed between the parties. See State Ex Rel. Div. of Family Services v. Ruble, 684 S.W.2d 949, 951 (Mo.App.1985); Holt, 662 S.W.2d at 580.

Husband relies primarily on Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974) and Meyer v. Meyer, 493 S.W.2d 42 (Mo.App.1973) to support his contention that wife acquiesced to the reduced payments and so waived her right to seek the accrued amount because of the express agreement. The facts here are distinguishable from both Meyer and Rodgers....