Newton v. Newton
| Decision Date | 18 August 1981 |
| Docket Number | No. 43677,43677 |
| Citation | 622 S.W.2d 23 |
| Parties | Doris M. NEWTON, a/k/a Bone, Petitioner-Respondent, v. Joe NEWTON, Jr., Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Marvin S. Wood, Clayton, for respondent-appellant.
Claude C. Knight, St. Charles, for petitioner-respondent.
Respondent Joe Newton appeals the summary denial of his motion for credit on a child support judgment; this, to the extent his wife had received child support payments from his total disability social security benefits.
Here are the pertinent parts of the record:
The parties were divorced in 1973. In 1975 the original decree was modified to increase child support to $27.50 a week for each child. This is the judgment against which the father now seeks credit for social security child support payments.
Next, in April of 1977 the parties filed cross-motions to modify the child support allowances. She pled the children's living expenses had increased; he pled he "has become totally disabled" and unable to pay support but that his wife was able to do so.
There is neither a transcript nor formal judgment entry on these cross-motions to modify; we have only the judge's docket entry. Under date of December 22, 1977 it recites the parties' appearances and that each testified; then: "Ct finding there is not sufficient evidence of change of circumstances on either motion and denies both."
Next, on September 2, 1980 husband filed the current motion. It recites the 1973 decree and 1975 modification. He pleads that on August 15, 1980 the wife sought relief in Arkansas under the Uniform Support Act, contending husband's child support payments were $13,000 in arrears. He contends that amount fails to allow him credit for the social security child support payment the wife has received. By his motion husband seeks credit for those payments.
The mother moved to dismiss father's current motion, pleading only that it failed to state a cause of action. On November 26, 1980 the trial court summarily dismissed the father's motion and he has appealed.
The mother supports the trial court's denial of the father's motion on two grounds. First, that the issue of reducing child support is res judicata. And, she also denies any connection between the court's child support allowances and the social security allowances paid her for the childrens' support.
The mother's res judicata contention is based on the father's April 1977 pleading he had become totally disabled. He did not then plead that either he or the children were then drawing social security benefits. The mother's res judicata contention does not meet the requirement handed down in Whiteley v. Whiteley, 325 S.W.2d 502 (3) (Mo.App.1959) that a "former judgment is conclusive in a second suit between the same parties where the same legal right as that involved in the former suit comes again in issue". See also Defford v. Zurheide-Hermann, Inc., 536 S.W.2d 804 (6) (Mo.App.1976). The issues then and now are different.
And, res judicata...
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