Marriage of Hatch, In re
| Decision Date | 13 April 1993 |
| Docket Number | No. 18035,18035 |
| Citation | 851 S.W.2d 103 |
| Parties | In re the MARRIAGE OF HATCH. Ronald Earl HATCH, Petitioner-Appellant, v. Dana HOOTEN (formerly Hatch), Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Jay R. Yorke, Dexter, for petitioner-appellant.
Andrew C. Bullard, Bullard & Bullard, Kennett, for respondent-respondent.
This is a dispute over the obligation of Ronald Earl Hatch (Father) to pay college expenses and medical expenses for his children. Dana Hooten (Mother) tried to collect such expenses from Father by having a garnishment issued in aid of an execution on a child support order. Father moved to quash the garnishment or, in the alternative, that the rightful sum owed by him be determined. Following an evidentiary hearing, the trial court found that the "college expense" language in the decree was vague and unenforceable. It sustained the motion to quash the garnishment. Nevertheless, the trial court found that "based on evidence presented ... a determination" could be made of the amount "owed by [Father] to [Mother] for college expenses, medical expenses and unpaid child support." Judgment was entered for the mother and against the father for $12,890.06, an amount comprised of $11,381.58 for college related expenses, $516.88 for medical expenses, and $991.60 for unpaid child support. Father appeals from that judgment.
We reverse and remand as to that part of the judgment that determines and awards college and medical expenses. We affirm the remainder of the judgment.
On December 9, 1987, the marriage of this couple was dissolved. A subsequent motion to modify filed by Mother was settled. Based on the settlement, the trial [I]t is ORDERED ... that [Mother] is granted the care and custody of the two (2) minor children ...; that [Father] pay to [Mother] ... $200.00 per month per child as child support ...; that [Father] shall pay tuition, room, board, books and incidental expenses for the minor children in the event that they should desire to attend college ...; that [Father] shall maintain medical insurance on said minor children and ... pay all medical expenses not covered by the insurance.
court on July 31, 1989, entered an order modifying their divorce decree. In pertinent part that order reads:
In 1991 Mother caused an execution and garnishment to be issued on the modified decree. She claimed that Father was delinquent on all support obligations, i.e., periodic support, medical expenses, and college expenses.
Father filed a pleading entitled "Motion to Quash" wherein he alleged that the amount in the garnishment was incorrect. He asked that the court quash the garnishment "or in the alternative that the rightful sum owed by [Father] to [Mother] be determined."
During a hearing on the "Motion to Quash," Mother offered evidence of sums spent by her for their daughter's college expenses and for both children's uninsured medical expenses. She also offered evidence of Father's delinquency on the periodic support. The trial court then entered an order that included the following:
8. Missouri case law has evolved since the filing of the modified decree of dissolution. The modified decree in this case provided for the Petitioner to pay "tuition, room, board, books and incidental expenses for the minor children in the event that they should desire to attend college". While this language was apparently adequate for many years, the appellate courts of this state have decreed that such language is so vague as to render any subsequent judgment based solely on that language unenforceable. Based on Missouri case law the language in the modified decree renders that portion of the modified decree vague and [un]enforceable if acting alone, but that based on evidence presented to the Court a determination can be made of actual amounts owed;
9. that evidence was presented to this Court detailing the amount owed by Petitioner to Respondent for college expenses, medical expenses and unpaid child support.
THEREFORE, IT IS ORDERED ... that Motion to Quash garnishment is sustained as to the garnishment issued June 6, 1991; that as of January 16, 1992 Petitioner owed to the Respondent the sum of $991.60 for unpaid child support, $516.88 for unreimbursed medical expenses and $11,381.58 for college related expenses, or a total of $12,890.06; that Respondent is granted a judgment [in] her favor and against Petitioner in the amount of $12,890.06....
The father appeals from the foregoing judgment.
By a separate motion to dismiss this appeal, Mother contends that Father is not an aggrieved party according to § 512.020, RSMo 1986, and therefore is not entitled to appeal. Her claim in this regard has two prongs: (A) that Father is estopped from appealing or has waived his right to appeal because he consented to the entry of the modified dissolution decree, and (B) that Father asked for a determination of what he owed as an alternative request in his motion, and he cannot therefore be aggrieved when the trial court granted the relief he sought. 1
Because the right to appeal is purely statutory, Haarmann v. Davis, 620 S.W.2d 39, 40 (Mo.App.1981), we start with § 512.020, RSMo 1986. With exceptions not applicable here, it provides that " '[a]ny party to a suit aggrieved by any judgment of any trial court in any civil cause' " may appeal " 'from any final judgment in the case or from any special order after final judgment....' " Helton Construction v. High Point Shopping Center, 838 S.W.2d 87, 90 (Mo.App.1992).
Section 512.020 notwithstanding, in prong "A" of her motion Mother argues for dismissal relying on State ex rel. Fletcher v. New Amsterdam Cas. Co., 430 S.W.2d 642 (Mo.App.1968). Fletcher states the general rule that an order entered pursuant to an agreement of the parties is not appealable because it is not a judicial determination of rights, but a recital of an agreement. 430 S.W.2d at 645. A party to such an agreement is estopped or waives its right to appeal when a judgment, order or decree was entered at its request. Id. Pointing to the fact that the underlying decree by which Father was ordered to pay college expenses and uninsured medical expenses was entered "by agreement of the parties," Mother argues that Father, by filing his Motion to Quash and subsequent appeal, is attempting to attack a two-year-old final judgment which he consented to. We disagree; Mother's argument misconceives the judgment from which Father appeals.
As stated, among the orders made appealable is "any special order after final judgment in the cause." § 512.020. The noun phrase "any special order after final judgment in the cause" refers to " 'the orders in special proceedings attacking or aiding the enforcement of the judgment after it has become final in the action in which it was rendered.' " Helton Construction, 838 S.W.2d at 91 (quoting Wehrs v. Sullivan, 187 S.W. 825, 826-27 (Mo.1916)). See also City of Caruthersville v. Cantrell, 241 S.W.2d 790, 791 (Mo.App.1951).
Examples of "any special order after final judgment" include an order refusing a request pursuant to Rule 74.11(a) for satisfaction of a judgment, Helton Construction, 838 S.W.2d at 92 (); an order overruling a motion to quash an execution, Gale v. Michie, 47 Mo. 326, 327 (1871); Anderson v. Anderson, 404 S.W.2d 206, 207 (Mo.App.1966), and Carrow v. Carrow, 294 S.W.2d 595, 597 (Mo.App.1956); a final judgment entered in a garnishment action, Household Finance Corp. v. Seigel-Robert Plating Co., 483 S.W.2d 415, 417 (Mo.App.1972); 2 and an order ruling a post-judgment motion to retax costs. State v. Cave, 359 Mo. 72, 220 S.W.2d 45, 51 (banc 1949).
Here, the principal question--whether Father owed as a part of his child support obligation some part of the children's college and medical expenses--was settled by the underlying modified decree. What was not settled by the underlying judgment was the amount of Father's obligation for college and medical expenses and what criteria were to be followed in determining his obligation therefor. Graf v. Bacon, 800 S.W.2d 88, 90 (Mo.App.1990), teaches that even though vagueness in an underlying dissolution or modification decree may prevent its enforcement, many such judgments have enough force to be the basis for a new order correcting the deficiency of the underlying modified decree. However, before a fatally vague or indefinite support order can be made enforceable, a new order correcting the deficiency must be fashioned. Graf, 800 S.W.2d at 90. Once a new order establishes criteria, the trial court can then resort to extrinsic evidence to determine the obligation of the parties. Id. See also Echele v. Echele, 782 S.W.2d Based upon the above, we view Father's alternative motion for determination of the amount due as a request for a "special order" within the meaning of § 512.020 and we view the trial court's judgment determining the amount due as an order in a special proceeding " 'attacking or aiding the enforcement of the judgment after it has become final in the action in which it was rendered.' " Helton Construction, 838 S.W.2d at 91 (quoting Wehrs, 187 S.W. at 826-27 ). We hold, therefore, that it is a "special order" appealable under § 512.020. We reject prong "A" of Wife's motion to dismiss appeal.
430, 436 (Mo.App.1989). A new order or judgment thus fashioned, if correctly done, clearly aids in the enforcement of the underlying judgment by removing the fatal indefiniteness. It is the new order by the trial court--that which purportedly corrects the deficiency of the underlying judgment--from which Father appeals.
To support prong "B" of her motion to dismiss, Mother argues as follows:
[I]n his Motion ... [Father] asked the Court to quash the garnishment and to determine the rightful sum owed.... The Court sustained the Motion to Quash...
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