Olson v. Olson, s. 36485

• Decision Date: 20 January 1976
• Docket Number: 36486,Nos. 36485,s. 36485
• Citation: 534 S.W.2d 526
• Parties: Victoria OLSON, Appellant-Respondent, v. Richard G. OLSON, Respondent-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 526

534 S.W.2d 526

Victoria OLSON, Appellant-Respondent, v. Richard G. OLSON, Respondent-Appellant.

Nos. 36485, 36486.

Missouri Court of Appeals, St. Louis District, Division Four.

Jan. 20, 1976.

Motion for Rehearing or Transfer Denied March 10, 1976.

Application to Transfer Denied April 14, 1976.

Charles A. Werner, St. Louis, for appellant-respondent.

Ernest L. Keathley, Jr., St. Louis, for respondent-appellant.

NORWIN D. HOUSER, Special Judge.

Victoria Olson, a resident of Alexandria, Virginia, filed a petition in the Juvenile and Domestic Relations Court of Fairfax County, Virginia under the provisions of the Uniform Reciprocal Enforcement of Support Act of Virginia (Title 20, Chapter 5.2, Code of Virginia 1950), praying for an order directed to Richard Olson, her former husband (a resident of Missouri), requiring him to provide fair and reasonable support for two minor children born of the marriage. Richard filed an answer in the nature of a general denial, after admitting the marriage; that Victoria was his former wife; the birth of the two children; setting up as an affirmative defense that the parties were divorced in the State of California by a judgment, which became final May 9, 1970, requiring Richard to pay $50 a month as child support for each child; that he has paid and continues to pay $100 per month pursuant to the judgment; that Victoria is equally responsible for support of the children and has greater financial resources at her disposal for such purposes than does Richard, and praying for dismissal of the petition. Victoria's reply admitted the divorce and support judgment but denied that it constituted an affirmative defense.

A judge of the Virginia court certified the filing of the petition and Richard's address; reaffirmed the allegations of the petition and need for $456 per month support for the children, according to Victoria's testimony; that the petition sets forth facts from which it may be determined that Richard owes a duty of support, and that the petition should be dealt with according to law. This certificate and proper exemplification of records were filed in the Circuit Court of the County of St. Louis on April 23, 1973. Richard filed a motion to dismiss, attaching a certified copy of the California divorce and support decree. The motion to dismiss was heard and overruled and the cause was submitted to the circuit court on the pleadings, interrogatories, answers to interrogatories and memoranda. On May 29, 1974 judgment was entered for Victoria and against Richard in the sum of $27.50 per week for the support of each of the two children, commencing June 1, 1974; denying Victoria attorney's fees, and refusing to make the award retroactive to the date of filing the petition. Both Victoria and Richard appealed. Their separate appeals, consolidated, are now disposed of in one opinion.

Richard's Appeal

Richard's first point is that the Uniform Reciprocal Enforcement of Support Law, Chapter 454, RSMo 1969 (URESL), and the similar Virginia law, have no application under the facts of this case, which does not involve a runaway father or a father delinquent in payments; that this is a misplaced effort to modify the California support decree, but the California support decree cannot be modified under URESL, the purpose of which is the enforcement of duties of support; that if a duty of support has been imposed by another court the only function of the court in the responding state (Missouri) is to enforce that duty of support in cases where the respondent is not fulfilling that duty; that nothing in URESL gives the court, in either initiating state (Virginia) or responding state authority to increase the amount of support previously determined by another court, or to modify child support provisions of a foreign divorce decree; that to so rule would give the court in the responding state the power to supersede the support order of the divorce court, contrary to § 454.280, which provides: 'No order of support issued by a court of this state when acting as a responding state shall supersede any other order of support * * *.'

URESL must be liberally construed to meet cases clearly within the spirit or reason of the law, resolving all reasonable doubts in favor of the applicability of the law to the particular case. State ex rel. Whatley v. Mueller, 288 S.W.2d 405 (Mo.App.1956).

Richard misinterprets the object and purpose of Victoria's petition and misconstrues the range and scope of these remedial enforcement statutes. This is not a proceeding to modify the child support provisions of the California divorce decree, as Richard contends. This is a new, separate and independent proceeding. Victoria's petition makes no reference to that decree. That decree was not a part of her proof. The judgment from which this appeal is taken does not purport to modify or supersede the California decree, which was not mentioned in the court's findings, conclusions and judgment. Indeed, no court of this state when acting as a responding state could issue an order superseding the foreign support order, in the sense of suspending or staying its operation, if for no other reason because of the express provision of § 454.280, supra. That section further provides that 'the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.' The last quoted language plainly contemplates that more than one order of support may be outstanding at any given time. Furthermore, § 454.030 expressly provides that the remedies provided in URESL 'are in addition to and not in substitution for any other remedies.' Victoria is pursuing an additional, auxiliary or supplemental remedy, and is not barred from maintaining this action because of the California decree. Elsner v. Elsner, 425 S.W.2d 254(2) (Mo.App.1967), holds that a California judgment awarding a divorced wife $15 per week for child support is not res adjudicata of the issue of child support and does not bar the maintenance of an action in the Missouri courts for child support for a larger amount than that awarded by the California court. In Swan v. Shelton, 469 S.W.2d 943 (Mo.App.1971), this Court construed the powers given to a responding court under § 454.240 'to include the power to require a defendant to pay a lesser amount than that required to be paid by the order or judgment of the initiating state.' If the court of the responding state can diminish the financial obligation it must have the corresponding power to increase it, for it is a poor rule that does not work both ways. Two courses of action were open to Victoria under URESL. She could have enforced the duty of support imposed by the provisions of the California decree by filing a petition for its registration and confirmation under §§ 454.290--340, both inclusive. Instead, she elected to start this independent proceeding, invoking the 'imposable by law' language of § 454.020(6), ¹ thereby putting the machinery of the law in motion to find and impose a duty of support independent of and without reliance upon the foreign support decree. A duty of support 'imposable by law' is one arising out of a relationship--a duty of support to be adjudicated and reduced to decretal form in the responding state upon proper evidence at a hearing after due notice to defendant, through the instrumentality of this new, additional remedy afforded by URESL. Section 454.270, providing that no URESL proceeding shall be stayed because of the existence of a pending divorce proceeding, further indicates that URESL provides an additional remedy to enforce a duty of support and that the jurisdiction of a divorce court is not exclusive in the enforcement of the duty.

That Victoria properly proceeded under URESL in her effort to secure a larger award for support of the children, and is not relegated to the filing of a motion in the California court to modify the child support provisions, is strongly supported by the 1969 decision of the Supreme Court of Missouri en banc in Paul v. Paul, 439 S.W.2d 746. In that case plaintiff and defendant were divorced by decree of the Circuit Court of Jackson County, Missouri, which awarded plaintiff custody of two children and granted her $11.25 per week per child for child support. Plaintiff moved to Arizona, where she filed a complaint under the Arizona Uniform Reciprocal Enforcement of Support Act, alleging the divorce, the award for child support, defendant's default in payments and the need for $30 per week for the children (instead of the $22.50 per week awarded in the divorce proceedings). The Arizona court made findings under its URES Act and certified the papers to the Circuit Court of Jackson County, Missouri, where they were filed. Defendant, served with process, moved successfully to dismiss the proceedings for lack of jurisdiction, the circuit court being of opinion that the divorce court had exclusive jurisdiction. The Supreme Court reversed, holding that the circuit court had jurisdiction of the URESL proceedings and directed the circuit court to proceed as the responding state court under URESL. The Court treated URESL as an exception to the rule that a court granting a divorce has continuing, exclusive jurisdiction of the maintenance of children until they reach majority, and held that the jurisdiction of the divorce court was not exclusive; that URESL provides an additional, expeditious, inexpensive way to enforce obligations of support; that URESL could be utilized as an additional means of enforcing a duty of support regardless of the divorce proceedings; that the divorce proceedings did not affect complainant's right to enforce support obligations through URESL; that §§ 454.020, 454.030, 454.090, 454.270 and 454.280 support the conclusion that the court of the responding state had jurisdiction to proceed to hear this complaint, in which the former wife sought an amount...