Marriage of Root, In re

• Decision Date: 24 July 1989
• Docket Number: No. 15881,15881
• Citation: 774 S.W.2d 521
• Parties: In re the MARRIAGE OF Nila Jean ROOT and Robert James Root. Nila Jean ROOT, Appellant, v. Robert James ROOT, Respondent.
• Court: Missouri Court of Appeals

Page 521

774 S.W.2d 521

58 USLW 2115

In re the MARRIAGE OF Nila Jean ROOT and Robert James Root.

Nila Jean ROOT, Appellant, v. Robert James ROOT, Respondent.

No. 15881.

Missouri Court of Appeals,

Southern District,

Division One.

July 24, 1989.

Dan J. Pingelton, Columbia, for appellant.

James E. Baldwin and Mark E. Rector, Donnelly, Baldwin, Wilhite and Moore, Lebanon, for respondent.

CROW, Presiding Judge.

This appeal presents an issue of first impression in Missouri.

The marriage of Nila Jean Root ("Nila") and Robert James Root ("Robert") was dissolved June 8, 1984, by decree of the Circuit Court of Laclede County, Missouri. The decree awarded Nila custody of the parties' two minor children, and ordered Robert to pay Nila child support of $100 per month per child.

Robert failed to pay. Nila, aided by the Child Support Enforcement Unit, Division of Family Services, Missouri Department of Social Services, had two garnishments issued in 1986, and two more issued in 1987. Nila's request for the second of the two 1987 garnishments stated Robert owed $3,009.68 as of September 30, 1987.

Nila and Robert remarried each other January 19, 1988.

On March 2, 1988, Nila filed a petition for dissolution of the remarriage in the Circuit Court of Boone County, Missouri. On May 24, 1988, Nila requested the Clerk of the Circuit Court of Laclede County to issue an execution to collect an alleged arrearage of $3,809.68 child support owed her by Robert as of January 31, 1988, under the 1984 decree. Nila prayed that a garnishment be served on the registered agent of "Mid-American Dairyman, Inc.," in aid of the execution.

That was evidently done, as Robert subsequently filed a motion to quash the execution. On July 1, 1988, the Circuit Court of Laclede County heard evidence on Robert's motion, after which the court entered the following order:

"....

The Court ... finds that the prior order of this Court concerning [Robert's] obligation to pay child support for the minor children born of the parties has been negated and rendered null and void by the subsequent remarriage of [Nila] and [Robert] on January 19, 1988 and that the jurisdiction of this Court over the parties and their minor children was terminated by the remarriage of January 19, 1988.

NOW, THEREFORE, IT IS ORDERED [that Robert's] ... Motion to Quash ... be and same is hereby sustained and the general execution issued herein is herewith set aside and is for naught held and said general execution is herewith recalled.

IT IS FURTHER ORDERED ... [that Robert] is herewith forever discharged and released from the money judgment heretofore rendered against [Robert] herein for the support of the minor children and said judgment is herewith declared fully satisfied.

...."

Nila appeals from the above order. ¹ She maintains that her remarriage to Robert did not extinguish her claim for the unpaid child support that had accrued under the 1984 decree prior to the remarriage. She insists the trial court was wrong in holding that Robert, by reason of the remarriage, is discharged from the arrearages under the 1984 decree, and in declaring that Robert's child support obligation thereunder is fully satisfied.

No factually similar Missouri case has been cited by the parties, and our independent research has located none.

At the outset we observe that the $3,809.68 Nila seeks to collect represents child support arrearages under the 1984 decree that allegedly accrued prior to the remarriage. As recounted earlier, Nila's request for the second 1987 garnishment stated the indebtedness as of September 30, 1987, was $3,009.68. The 1984 decree provided that the child support was to commence on the date of that decree (June 8, 1984), and was payable monthly in advance. Under that provision four more installments of child support would have become due between September 30, 1987, and January 19, 1988, the date of the remarriage. Those installments would have totaled $800 which, added to the $3,009.68 allegedly owed as of September 30, 1987, makes $3,809.68, the amount of the execution quashed by the trial court. Nila, as we understand her, does not, in the instant action, seek to collect child support under the 1984 decree for any period commencing after the remarriage.

We also bear in mind that Nila launched her effort to collect the $3,809.68 only after she had instituted an action to dissolve the remarriage. ²

Additionally, it should be noted that all of the installments Nila seeks to collect became due within ten years prior to the issuance of the garnishment, hence there is no presumption of payment under § 516.350.2, RSMo 1986. ³ There is likewise no need to consider whether the running of the ten-year period would be tolled for the duration of the remarriage.

Having marked the boundaries of the controversy we look for guidance to cases from other jurisdictions where parents have been divorced, have subsequently remarried each other, and issues regarding child support awarded by the divorce decree have thereafter arisen and been adjudicated. We have eliminated cases where spouses have been divorced, have subsequently remarried each other, and issues on matters other than child support have thereafter arisen and been adjudicated. Cases in the latter category include McDaniel v. Thompson, 195 S.W.2d 202 (Tex.Civ.App.1946), dispute between surviving husband and siblings of deceased wife over real estate; Jenkins v. Followell, 262 P.2d 880 (Okla.1953), dispute over child custody, issue was whether court that had adjudicated custody in first divorce retained jurisdiction to modify custody order after parents had remarried and been divorced anew by different court and custody of child had been adjudicated in second divorce; Warren v. Warren, 213 Ga. 81, 97 S.E.2d 349 (1957), father awarded visitation rights with child in divorce decree, father and mother thereafter remarried and were later divorced again, and father subsequently sought sanctions against mother for denying visitation rights awarded in first decree; Depper v. Depper, 9 Ariz.App. 245, 451 P.2d 325 (1969), issue whether Arizona court retained jurisdiction to modify custody order in divorce decree where father, after divorce, married another woman and, while still wed to her, went through marriage ceremony with child's mother in another state, and mother thereafter obtained decree of divorce in third state purporting to award custody of child to mother. These four cases, and others, are cited in 26 A.L.R.4th 325, 332-33 (1983), in support of the proposition that where the parties to a divorce proceeding subsequently remarry each other the provisions of the original decree relative to support of children are nullified and rendered unenforceable. While that proposition, stated in various ways, was noted in McDaniel, 195 S.W.2d at 203, Jenkins, 262 P.2d at 882-83, and Depper, 451 P.2d at 327, it is manifest that no issue of child support was involved in any of the four cases discussed in this paragraph, consequently any comment on that subject in any of them was dictum.

Three other cases cited in the A.L.R.4th annotation did involve child support, but not child support that accrued between the parties' divorce and their subsequent remarriage.

Davis v. Davis, 68 Cal.2d 290, 66 Cal.Rptr. 14, 437 P.2d 502 (1968), cited in the annotation, involved a 1958 divorce which awarded the mother custody of two children but no child support, as the father was outside the state and was served only by publication. The next year, by stipulation, the court ordered the father to pay child support of $100 per month per child. In 1960 the father and mother remarried each other. They subsequently separated and the mother obtained a divorce, but no child support as the father was outside the state. Later an order was entered by stipulation requiring the father to pay child support. The mother subsequently undertook to collect child support for the interval between the separation that followed the remarriage and the second support order, basing her action on the first support order. The trial court held the parties' remarriage terminated the first support order. Affirming, the Supreme Court of California said that the rule in other jurisdictions is that if the parties again intermarry, child custody and support orders as between themselves are thereupon terminated, as well as the jurisdiction of the court to enforce such orders, and this is true whether or not the parties subsequently divorce again. 66 Cal.Rptr. at 15, 437 P.2d at 503. In support of that declaration the opinion cited, among other cases, McDaniel and Jenkins which, as we have seen, did not decide that issue.

While there are sound reasons supporting the holding in Davis, the facts there are unlike those before us. In Davis the mother was endeavoring to collect child support under the first order for a period commencing after the remarriage. It would be absurd to hold that once parents remarry each other and the family is again intact and residing in the same household, the former noncustodial parent must pay future installments of child support to the other parent per the past divorce decree. That is to say, the remarriage should terminate the former noncustodial parent's duty to pay any child support that would have become due after the remarriage. Davis, however, did not involve the situation we have here, where Nila is trying to collect child support that became due from Robert after the first dissolution and during the period when Nila was a single parent with custody of the parties' children. The sum Nila seeks to collect was due her at the time of the remarriage; Nila does not, in this action, claim any child support is owed her for any period after the remarriage.

Thomas v. Thomas, 565 P.2d 722 (Okla.App.1976), also cited in the A.L.R.4th annotation, involved a 1970 divorce which awarded the mother custody of the parties' child and ordered the father to pay...