Marriage of Ford, In re
| Decision Date | 12 May 1999 |
| Docket Number | No. 22608,22608 |
| Citation | 990 S.W.2d 698 |
| Parties | In re the MARRIAGE OF Sharon Louise FORD and Gerald Dee Ford. Sharon Louise Ford, Respondent, v. Gerald Dee Ford, Appellant. . Division One |
| Court | Missouri Court of Appeals |
Amy L. Boxx, Randall, Boxx & Associates, P.C., Monett, for appellant.
Carr L. Woods, Monett, for respondent.
This is a dispute about child support. As shall become apparent infra, extracting some of the pertinent data from the abstruse record is a vexing task.
The marriage of Sharon Louise Ford and Gerald Dee Ford was dissolved by a judgment dated January 8, 1997. The judgment awarded Sharon 1 primary physical custody of the parties' two children and ordered Gerald to pay Sharon $535 per month child support.
In May 1997 (some four months after the dissolution), the parties resumed cohabitation and lived together with their children approximately fifteen months. The parties then separated anew.
The genesis of the dispute that produced this appeal is a document denominated "Order of Income Assignment" ostensibly signed by the trial court. The document is dated August 19, 1998; however, it is not stamped filed by the court clerk and there is no entry on the trial court's docket sheet memorializing its filing. Nonetheless, as this court comprehends the parties' briefs, they treat the document as an order duly entered by the trial court. This court shall do likewise. This opinion henceforth refers to the document as the "Income Assignment Order."
The Income Assignment Order contains a finding that Gerald failed to execute an income assignment "as heretofore ordered on the 8th day of January, 1997."
The only document in the record dated January 8, 1997, is the dissolution judgment. This court has searched it and has found no provision ordering Gerald to execute an income assignment. There is, however, a segment of the dissolution judgment providing:
The Income Assignment Order declares that the court assigns $535 per month for child support and "such additional amounts as may be necessary to defray arrearages" from the "earnings or other income" of Gerald to "the Circuit Clerk of Barry County" as trustee for Sharon.
This court, upon examining the Income Assignment Order, searched the current Missouri statutes for authority empowering a trial court to issue such an order. Finding none, this court issued its own order directing Gerald to inform this court of the "statute, rule, or case law" authorizing the trial court to issue the Income Assignment Order. This court's order is henceforth referred to as the "Appellate Order." The Appellate Order permitted Sharon to file a response thereto if she chose.
Gerald filed no response to the Appellate Order within the time granted by this court. Neither did Sharon.
Unaided, this court has surmised that the trial court signed the Income Assignment Order in an effort to utilize § 452.350, RSMo Cum.Supp.1997, which establishes a procedure whereby the employer of a child support obligor can be directed to withhold each month from the obligor's earnings an amount equal to one month's child support and transmit such sum to the circuit clerk. 2
The next event of record in the trial court occurred September 1, 1998. On that date, Gerald filed a "Motion to Quash Enforcement of Involuntary Income Assignment." This opinion henceforth refers to that motion as the "Motion to Quash."
The Motion to Quash pled that Sharon sought a "wage assignment" (inferably, the Income Assignment Order) for "the 15 months during which [Gerald] supported the children in his home." The Motion to Quash asserted Gerald "is entitled to credit for said 15 months[.]"
The trial court held a hearing October 1, 1998, on the Motion to Quash. Both parties appeared in person and with counsel. Both parties testified.
Following the hearing, the trial court calculated that Gerald owed Sharon child support aggregating $8,025 from May 1997 through August 1998, which Gerald did not pay. However, the trial court found that Gerald provided some rent, utilities and food for the children during that period. Consequently, the trial court granted Gerald a "credit" of $3,000, leaving "arrears of $5025."
Gerald brings this appeal from that ruling.
This court, upon examining Gerald's brief, noted that he cited no authority demonstrating that the trial court's ruling is appealable. Accordingly, this court included in the Appellate Order (mentioned earlier) a directive that Gerald supply authority to this court demonstrating that such a ruling is appealable. As reported earlier in this opinion, neither party filed a response to the Appellate Order within the designated deadline.
Unaided, this court has endeavored to determine whether such a ruling is appealable.
The effect of the Income Assignment Order appears to be analogous to a garnishment, as the Income Assignment Order purports to assign a portion of Gerald's earnings to the circuit clerk as trustee for Sharon.
In Perkinson v. Perkinson, 856 S.W.2d 678, 679 (Mo.App. E.D.1993), the court explained:
In Perkinson, an ex-wife, attempting to collect maintenance from her ex-husband, had a garnishment issued against a bank in which he had checking and savings accounts. Id. at 679. Nothing in the record indicated that the garnishee paid anything into the court registry. Id. The appellate court dismissed the appeal, stating:
In the instant case, Gerald testified that his employer had "begun taking child support out of [my] check." Sharon testified that two weeks before the hearing, she received $175.19 "from Child Support Enforcement."
This court divines from the above testimony that at the time of the hearing, (a) Gerald's employer had withheld at least $175.19 from Gerald's earnings, (b) Gerald's employer had paid said sum into the registry of the trial court, and (c) the court clerk had disbursed said sum to Sharon. If that supposition be correct, the effect of the Income Assignment Order was essentially the same as if (a) Sharon, or the Division of Child Support Enforcement on her behalf, had caused a garnishment to be issued against Gerald's earnings, (b) the garnishee--Gerald's employer--had paid $175.19 into the registry of the trial court in obedience to the garnishment, and (c) the court clerk had disbursed said sum to Sharon.
Furthermore, it appears that so long as the Income Assignment Order remains in force, Gerald's employer will continue to send a portion of Gerald's earnings to the trial court, which sums will be disbursed by the court clerk to Sharon.
Consequently, this court concludes that the effect of the ruling from which Gerald brings the instant appeal is essentially the same as a trial court's denial of a motion to quash a garnishment after the garnishee pays the garnished funds into the registry of the court. According to Perkinson, a denial of a motion to quash a garnishment in such circumstances is appealable. Id. at 679-80. Therefore, this court holds the ruling from which Gerald brings the instant appeal is appealable.
Having cleared that hurdle, this court reaches Gerald's points relied on. The first reads:
"Having determined that the cohabitation and joint support justified quashing any of the judgment accrued between May, 1997 and August, 1998, the Court erred and misapplied the law in failing to quash all sums accrued during that period."
Gerald's brief was filed February 11, 1999. The version of Rule 84.04, Missouri Rules of Civil Procedure, in force on that date is the version that took effect January 1, 1999. Paragraph "(d)" of that version sets forth the requirements for a point relied on. It provides, in pertinent part:
"(...
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