Marriage of Lathem, In re, 12508

• Decision Date: 23 November 1982
• Docket Number: No. 12508,12508
• Citation: 642 S.W.2d 694
• Parties: In re the MARRIAGE OF Ruby C. LATHEM, Plaintiff-Respondent, and Bennie B. Lathem, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 694

642 S.W.2d 694

In re the MARRIAGE OF Ruby C. LATHEM, Plaintiff-Respondent and Bennie B. Lathem, Defendant-Appellant.

No. 12508.

Missouri Court of Appeals,

Southern District,

Division Two.

Nov. 23, 1982.

Robert C. Fields, Springfield, for defendant-appellant.

Ivella McWhorter Elsey, Robert M. Sweere, Springfield, for plaintiff-respondent.

HOGAN, Judge.

Defendant Bennie B. Lathem appeals from an order of the Circuit Court of Greene County reviving a judgment ordering him to pay child support to the plaintiff. Defendant's sole point is that plaintiff's execution of the assignment statutorily required to qualify her to receive Aid to Families with Dependent Children (AFDC) under the provisions of 42 U.S.C. § 603 and § 208.040.1, RSMo 1978, ¹ has devested plaintiff of all interest in the judgment. Orderly determination of the merits requires consideration of two separate but parallel actions.

The record before us indicates the parties were divorced by the Circuit Court of Greene County on September 24, 1971. The plaintiff was awarded custody of two minor children and defendant was ordered to pay plaintiff the sum of $150 per month as child support. It is not clear how much the defendant paid before he discontinued payment. At the hearing on the petition for revivor, plaintiff testified defendant paid her $3,850 from the time of the divorce to the end of 1975, when he quit paying. An affidavit executed by the plaintiff, received in evidence at the same hearing, recites that the plaintiff received a total of $3,250 from the date of the divorce to September 1980. Whatever the amount, it is fairly inferable that a sizeable arrearage has accrued since 1976.

In 1977, plaintiff was obliged to seek public assistance. As a qualifying condition, the Division of Family Services required the plaintiff to execute the assignment of her rights of support required by § 208.040.2(2) and 42 U.S.C. § 602(a)(26)(A). This assignment was executed by the plaintiff July 11, 1977. At the end of September--or October 1978--plaintiff became ineligible to receive her entitlement. Plaintiff received the sum of $3,633.00 in benefits, although the precise amount was in dispute when this action was tried.

On February 10, 1981, a petition for support under the Uniform Reciprocal Enforcement of Support Act, now codified as Chapter 454, was filed in the Associate Circuit Court of Greene County. The petition generally conforms to the requirements of § 454.110; it was brought by the Division of Family Services as assignee and among other things prays entry of "... a judgment for child support arrearages/reimbursement of public assistance paid in the amount of $13,200.00 owed to the State of Missouri ...." The petition was certified to Oklahoma as responding state, and on April 13, the District Court within and for Tulsa County (a) found that the defendant owed a duty of support to the parties' minor children, and (b) decreed, in pertinent part, that defendant "pay the sum of $50.00 per month on an arrearage of $9,000. Said sum ... represents arrearages accruing since March of 1976. Respondent is to continue payments of $50.00 per month until the entire arrearage of $9,000 is paid in full, payments to begin on the 5th day of April, 1981." Thereafter, the Oklahoma judgment was registered in the Circuit Court of Greene County as provided by § 454.310. Date of registry is May 4, 1981.

On August 18, plaintiff in her own name petitioned the Circuit Court of Greene County for revivor of the original judgment by scire facias as provided by Rule 74.36; an order to show cause was issued the same day. Contemporaneously but separately, plaintiff moved the trial court to determine arrearages accrued under the original judgment, in effect so she might have execution in Oklahoma. Defendant was served and timely filed a "Motion to Dismiss and Quash," averring among other things that by reason of the assignment, plaintiff had no interest in the action and was not the real party in interest as required by Rule 52.01. The court received the record made in the URESA case and heard some oral testimony bearing on the motion to determine arrearages. At the conclusion of the hearing, the court announced it would enter an order of revivor, but set the trial of the motion for a later date. An order of revivor by scire facias was entered on September 23, 1981, and notice of appeal from the order was timely filed.

Before the cause was submitted, plaintiff filed a motion to dismiss the appeal because no final judgment had been entered. The motion was denied. Upon submission, the motion to dismiss was earnestly renewed. Plaintiff argues that because her "Motion to Determine Arrearages" was not ruled upon by the trial court, there is no final, appealable judgment. We cannot agree. It has been held that an order of revivor is a "special order after final judgment in the cause" and is therefore appealable under the provisions of § 512.020. Moore v. Luna, 626 S.W.2d 417, 418 (Mo.App.1981), and see City of Caruthersville v. Cantrell, 241 S.W.2d 790, 791 (Mo.App.1951). Plaintiff mistakenly assumes that because her application or petition for revivor was filed contemporaneously with the other pleading, the two actions were somehow merged or consolidated. The two claims were not joined in a single pleading as permitted under Rule 55.06(a). The trial court did hear some evidence pertaining to arrearages, but actions may not be regarded as consolidated under Rule 66.01(b) unless there is an order of consolidation. Kelly v. Greer, 295 F.2d 18, 19 (3d Cir.1961). There is no suggestion in the record that the court intended to consolidate the two actions; to the contrary, the legal file shows it set a hearing date for plaintiff's motion to determine arrearages at the time it entered an order of revivor. Upon this state of the record, we must hold that the two causes are separate, the judgment appealed from is final and the appeal is properly here.

To reiterate, defendant's sole point on this appeal is that plaintiff is not the real party in interest as required by Rule 52.01. Defendant would have it that plaintiff cannot maintain this action because she permanently assigned all her rights to receive support payments in order to become eligible for AFDC benefits. We are cited to State ex rel. Reser v. Rush, 562 S.W.2d 365 (Mo. banc 1978), and to various precedents which explain the reason for requiring actions to be brought in the name of the real party in interest, e.g., LoBello v. Laclede Gas Co., 517 S.W.2d 474 (Mo.App.1974). The plaintiff argues that the assignment must be construed in light of the provisions of § 208.040.5 because the statutes in existence at the time and place a contract is made and which affect its validity, construction and enforcement form a part of the contract as if expressly incorporated therein, citing Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122 (banc 1956).

We are inclined to agree with the plaintiff, but preliminarily, two observations should be made. Defendant's suggestion that our review of this cause is governed by Rule 73.01(c) is correct. When there is a hearing in a proceeding to revive a judgment by scire facias the hearing is now governed by the Civil Rules. Rule 74.39. Therefore this is a court-tried case. No request for findings was made, and it follows that all fact issues must be considered as having been found in accordance with the result reached.

And, while neither party has briefed or even suggested that the plaintiff's rights are governed by federal law, as implemented by federal regulations, this court takes notice of the laws of the United States and of the rules and regulations promulgated by federal agencies. Kawin v. Chrysler Corporation, 636 S.W.2d 40, 44 (Mo. banc 1982); Wentz v. Chicago B. & Q.R. Co., 259 Mo. 450, 463, 168 S.W. 1166, 1170 (1914); Macalco, Inc., v. Gulf Insurance Company, 550 S.W.2d 883, 887 (Mo.App.1977); Redman v. Western & Southern Life Ins. Co., 187 S.W.2d 842, 847 (Mo.App.1945). We therefore know that in 1974, the Congress enacted a comprehensive program to enforce collection of and reimbursement for AFDC payments made by the states. The federal legislation was enacted as Pub.L. 93-647 in 1974. ² The general effect of Pub.L. 93-647 was to add Title IV-D to the Social Security Act of 1935. Title IV-D was codified as 42 U.S.C.A. § 651, et seq. Conforming amendments to Title IV-A of the Social Security Act, 42 U.S.C.A. § 601 et seq., were also enacted as part of Pub.L. 93-647. Title IV-A is the part of the Social Security Act which provides for the disbursement of AFDC benefits. One of the most important changes effected by Pub.L. 93-647 was to require that each applicant for AFDC payments assign to the state any right which had accrued to her (or him) at the time the assignment was executed. 42 U.S.C.A. § 602(a)(26)(A).

In 1977, the General Assembly enacted C.C.S.H.B. 601, Laws of Mo.1977, p. 393. Section 2 of the original act specifically refers to Pub.L. 93-647 and to Title 45 C.F.R. It is thus apparent from reading the session laws that § 208.040 (which provides for the disbursement of AFDC) was amended and § 207.025 (providing for the enforcement of collection) was enacted in 1977 to comply with the requirements of Pub.L. 93-647. The only reason, we may add, for noticing the interrelation of state and federal law is that neither § 207.025 nor § 208.040 fully implement the regulations prescribing the contents of a participating state's plan. This is not to say that Missouri's statutes were inadequate; 45 C.F.R. § 302.17 requires participating states to submit their statutory plan for establishing and enforcing child support obligations, and Missouri's plan has been consistently approved. It is to say that our statutes are not explicit, so we may and should consider the federal regulations as interpretative. Seagraves v. Harris, 629 F.2d 385, 391-392 (5th Cir.1980). Moreover, at the...