Otten v. Otten

• Decision Date: 30 March 1982
• Docket Number: No. WD32704,WD32704
• Citation: 632 S.W.2d 45
• Parties: A. Lee OTTEN, Plaintiff-Appellant, v. Ramona Faye OTTEN, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 45

632 S.W.2d 45

A. Lee OTTEN, Plaintiff-Appellant, v. Ramona Faye OTTEN, Defendant-Respondent.

No. WD32704.

Missouri Court of Appeals, Western District.

March 30, 1982.

Robert M. Liston, Sedalia, for plaintiff-appellant.

Stanley B. Cox, Sedalia, for defendant-respondent.

Before SOMERVILLE, C. J., Presiding, and SHANGLER and WASSERSTROM, JJ.

WASSERSTROM, Judge.

This is a suit to specifically enforce an alleged settlement agreement. The trial court sustained defendant's motion to dismiss, and plaintiff appeals. We affirm.

In 1976, as part of a decree dissolving the marriage between the parties, the wife (defendant here) was granted $200 per month as a single sum for the support of two minor children. On January 13, 1981, the husband (plaintiff here) filed a motion to modify the decree on the ground that one of the children had become emancipated. The next day, January 14, 1981, the wife filed execution for $7,800 which she alleged to be accrued in unpaid child support and ordered garnishment on Third National Bank. The garnishment papers were served upon the bank on January 16, 1981. The bank paid $7,830 into court, and disbursement of that sum to the wife was ordered by the court on February 26, 1981.

On March 2, 1981, the husband filed his petition in the present case. He alleged that the wife had called his attorney on January 21, 1981, offering to settle all questions with respect to back child support for the sum of $4,500 and further offering that the decree of divorce be amended to provide child support on and after February 1, 1981, of only $100. The petition further alleged that the attorney told the wife he would have to consult his client; and that after consultation, the attorney advised the wife that the husband could raise $1,000 in cash immediately and would deliver to her his note for $3,500 in full satisfaction of back child support payments. The petition goes on to allege that the wife then stated that she would accept the proposal and would stop in the attorney's office the following Wednesday to pick up the check for $1,000 and the $3,500 note and that she would at that time sign a stipulation for modification of the decree. The husband alleges that he performed his part of the agreement by executing his check and note and by signing the agreed stipulation.

Paragraph 8 of the petition then proceeds to allege as follows: "Relying to his detriment upon the fact that a compromise agreement had been reached, and the respondent would upon the following Wednesday, her next day off, stop by petitioner's attorney's office and execute Exhibit B and pick up her promissory note and check in full settlement of all back child support payments, borrowed a substantial sum of money in order to meet business obligations incurred by him and relying upon the fact that a compromise agreement had been made satisfying the judgment for all child support payments due respondent through January 31, 1981 caused said loan proceeds to be temporarily deposited in a business account in his name alone at Third National Bank, Sedalia, Missouri." The petition goes on to allege that the wife, in violation of her agreement said to have been orally agreed on January 26, 1981, caused execution and garnishment to be issued on January 14, 1981. ¹ The petition concludes with a prayer that the wife be ordered to specifically perform the January 26 agreement by executing the Stipulation and that the court order the clerk of the court to return to the husband the sum of $7,800 paid into court by Third National Bank.

On the same day that the petition was filed, the trial court entered a temporary order for escrow of the $7,830 paid in by Third National Bank. Thereafter the wife filed her motion to dismiss the petition on the ground that it failed to state a cause of action. The court sustained that motion on the grounds that (1) the facts did not show an accord and satisfaction; and (2) there was no valid consideration for the alleged compromise agreement.

The husband's sole point on this appeal is that the court erred in dismissing his petition as an unsatisfied accord "because the contractual obligation alleged in the appellant's petition was a bilateral contract and not a full accord and satisfaction."

I.

The law is unclear as to whether an accord can be enforced where it is not followed by a completed satisfaction. The general texts show a conflict of authority on this point. Compare 1 Am.Jur.2d Accord and Satisfaction Section 50, p. 347, n.3, with Section 52, p. 350, nn. 4 & 5 (1962). See also 1 C.J.S. Accord and Satisfaction § 38 (1936). One eminent legal writer states that there is strangely little authority upon the matter and the few cases on the point contain reasoning which is not very full or satisfactory. This writer goes on to say that: "As a court of law cannot give adequate relief, and as the promise of temporary forbearance necessarily included in the accord gives equity jurisdiction of the matter, there seems good reason for equity to deal with the whole matter by granting specific performance." 15 Williston on Contracts Section 1845 (3d ed. 1972).

Some Missouri cases contain dicta bearing on this question. See for example Long v. Weiler, 395 S.W.2d 234 (Mo.App.1965); Hall v. Knapp, 552 S.W.2d 299 (Mo.App.1977). However, no Missouri holding squarely in point has been found. For purposes of this opinion we shall assume, without holding, that an agreement embodied in an accord is a proper subject for specific performance, even though the accord be not followed with a completed satisfaction.

II.

The trial court stated as an alternative ground for its ruling that: "It is clear upon the face of the pleadings there is no valid consideration for the alleged compromise agreement." ² The wife devotes the bulk of her brief to an argument supporting that conclusion. The husband has omitted giving this court the benefit of his views as to wherein consideration may be found. Nevertheless we shall consider: (a) whether consideration need be shown by the petition; and (b) whether any consideration has been shown or can be reasonably inferred from the allegations made in this petition.

A.

An accord and satisfaction will not be given effect unless founded upon a sufficient consideration. Curtis v. Indemnity Co. of America, 327 Mo. 350, 37 S.W.2d 616 (1931); Collins v. Gaskill, 359 Mo. 171, 221 S.W.2d 181 (1949); Alaska Federal Savings & Loan Ass'n v. Hoffman, 485 S.W.2d 118 (Mo.App.1972); Hall v. Knapp, supra; Kennedy v. Kennedy, 575 S.W.2d 833 (Mo.App.1978). Moreover the party relying upon the alleged contract of settlement is obligated to plead the matter of consideration. Ennis v. McLaggan, 608 S.W.2d 557 (Mo.App.1980).

B.

The first possible basis upon which to claim consideration would be the husband's promise to pay $4,500. That must be considered, however, in the light of the fact that the wife was claiming $7,800 in past due child support. Nowhere in his petition does the husband deny that he was delinquent in the amount of $7,800. An agreement on his part to pay the partial sum of $4,500 out of a total undisputed amount due of $7,800 cannot be acceptable consideration. Kennedy v. Kennedy, supra.

Nor can the husband's promise to pay $100 child support on and after February 1, 1981, be accepted as legal consideration. The husband was already under a continuing obligation to pay $200 per month. Even though one of the children may have become emancipated, that did not automatically result in a...