Overman v. Overman, 35238

• Decision Date: 23 July 1974
• Docket Number: No. 35238,35238
• Citation: 514 S.W.2d 625
• Parties: Frances Henson OVERMAN, Respondent, v. Ralph T. OVERMAN, Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 625

514 S.W.2d 625

Frances Henson OVERMAN, Respondent, v. Ralph T. OVERMAN, Appellant.

No. 35238.

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

July 23, 1974.

Motion for Rehearing or Transfer Denied Sept. 11, 1974.

Application to Transfer Denied Nov. 12, 1974.

Harold B. Bamburg, St. Louis, for appellant.

Lashly, Caruthers, Thies, Rava & Hamel, Michael C. Walther, Clayton, for respondent.

KELLY, Judge.

The question presented to the Court in this appeal is whether a Tennessee divorce decree awarding alimony to the wife, Frances Henson Overman, payable in monthly installments is entitled to registration under the Uniform Enforcement of Foreign Judgments Law, Rule 74.79, V.A.M.R., and Sec. 511.760 RSMo. 1969, V. A.M.S. ¹ For reasons hereinafter stated we hold that it is not and therefore reverse and remand the cause to the Circuit Court with directions.

On January 5, 1972, the respondent wife, (hereinafter referred to as 'the petitioner') filed a Petition for Registration of a Foreign Judgment in the Circuit Court of St. Louis County, Missouri, seeking to have registered a divorce decree rendered on the 22nd day of January, 1968, in the Trial-Justice Court of Anderson County, Tennessee, wherein she was awarded the sum of $9,300.00 per year alimony to be paid in monthly installments of $775.00. In her petition she alleged that the appellant-husband (hereinafter referred to as the 'defendant') had failed to comply with the terms of the judgment and as of December 31, 1971, he was $8,000.00 in arrears in his monthly payments; that interest in the amount of $445.00 was due on the aforesaid payments which are past due, and she prayed that the judgment be registered in the Court and made a final judgment of the Court pursuant to Rule 74.79. A copy of the decree was attached to her petition and since no challenge was made to its compliance with paragraph (c) of Rule 74.79 with respect to authentication we shall assume that it complied with that requirement.

After filing her petition for registration, petitioner obtained an execution and writ of garnishment in aider thereof directed to the defendant's employer garnisheeing defendant's wages for the period January to April, 1972.

On January 29, 1972, the defendant filed a Motion to Set Aside Registration of Foreign Judgment or, in the Alternative, to Quash or Stay Execution and Garnishment and For Other Relief. As grounds for this motion the defendant alleged that he had fully complied with the alimony requirements of the divorce decree until the summer of 1969, when his financial condition worsened; that he then advised the petitioner of this fact and petitioner agreed that thenceforward he would be required to pay only $500.00 alimony monthly in lieu of the $775.00 per month ordered in the divorce decree; and that in reliance on this agreement between the parties he did not seek a modification of the decree in this regard in the Tennessee Court which had entered the decree and thereafter faithfully performed the agreement and made the $500.00 payments in accord therewith commencing in July, 1969, and up to the date on which petitioner commenced these proceedings and farnisheed his wages. He contended that by reason of the facts alleged petitioner was guilty of laches and should be estopped from claiming any alimony in excess of the amount to which the parties had agreed to-wit: $500.00 monthly, and that he was therefore not indebted to petitioner in any amount. In addition to the aforesaid, defendant also alleged that the Tennessee decree sought to be registered was subject to retroactive modification and therefore the Courts of Missouri were under no constitutional duty to afford the judgment full faith and credit to any greater degree than were the Tennessee courts and further requested postponement of a trial on the petitioner's right to garnishee his wages until such time as he could apply to the Tennessee Court which had entered the decree for a modification of the decree with respect to the alimony award. The record fails to reveal any action on defendant's motion until July 10, 1972, when he filed a Motion to Modify Decree for Alimony seeking to have the Tennessee decree modified by the Missouri Court on the same grounds alleged in the previously filed motion of January 29, 1972. On that same date, July 10, 1972, petitioner filed a Motion to Dismiss Defendant's Motion to Modify on the ground that 'this court does not have jurisdiction over the subject matter.'

Sometime after July 10, 1972,--the record in this Court does not reveal--petitioner, without notice to the defendant, obtained from the Trial Justice Court of Anderson County, Tennessee, a 'Supplemental Decree' entered by the same judge who entered the original decree in the Tennessee divorce case in the same cause--'No. 5019'--which 'ordered and adjudged' that the decree of January 22, 1968 was 'in all things final at the time of entry' and 'that any and all sums of money which said final decree adjudges the said defendant, Ralph T. Overman, Sr., obligated to pay to Frances Henson Overman, are due and owing and said judgment is not subject to modification because with respect same was based upon the solemn agreement of the parties, and because all of the said sums have accrued and are past due and there has been no application whatsoever in this Court that the said decree be modified in any way, except a petition made shortly after the decree was entered, which said petition for modification was dismissed by agreement of said Ralph T. Overman, Sr.' The 'Supplemental Decree' further ordered and adjudged that all alimony payments by way of support and all of the other provisions of the decree are made final and have been final since the entry of same and 30 days thereafter, that execution issue by way of garnishment, or by execution upon the property of the defendant, or by any other means, including contempt, to collect the delinquent payments. Copies of the 'Supplemental Decree' over the certification of the Clerk of the 'Criminal-Trial Justice Court' that the copy 'is a true and correct copy of the original of this instrument filed in this cause' were mailed to the Judge of the St. Louis County Circuit Court before whom the motions were pending and to defendant's attorney of record in those proceedings. On August 4, 1972, defendant's counsel wrote to the Circuit Court Judge before whom the cause was pending acknowledging receipt of a copy of the 'Supplemental Decree' on August 2, 1972, commenting upon the legal effect of the 'Supplemental Decree' as he viewed it and accusing the petitioner of sneaking into the Tennessee Court while proceedings were pending in the St. Louis County Circuit Court without notice to either his client or himself. He offered to meet with the Judge on the matter and with petitioner's counsel if any further discussions should be necessary.

Thereafter, on February 20, 1973, the Circuit Court entered its order overruling defendant's Motion to Set Aside Registration of Foreign Judgment or, in the Alternative, to Quash or Stay Execution and Garnishment and For Other Relief and sustaining petitioner's Motion to Dismiss Defendant's Motion to Modify. This appeal followed.

The enforcement of alimony awards in a divorce decree rendered in the courts of one state of the Union in the courts of a sister state have for many years been by the cumbersome process of filing a suit in the sister state on the judgment of the rendering state and establishing in the forum of the sister state a judgment enforceable in the latter state. This was the only process available to non-residents in this State. To facilitate the enforcement of foreign divorce decree awarding alimony to the wife, the Legislature of this State in 1951 enacted the Uniform Enforcement of Foreign Judgments Law, Sec. 511.760, which was then adopted by the Supreme Court of Missouri as Rule 74.79. This Law establishes a procedure for the enforcement of foreign judgments in the courts of this State and provides a summary judgment procedure for doing so which is much less cumbersome than the former procedure. Beneficial Finance Co. v. Yellow Transit Freight Lines, Inc., 450 S.W.2d 222, 225(1) (Mo.App.1969). Paragraph (p) of the Rule however, expressly reserves the right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this Rule unimpaired, and paragraph (q) of the Rule provides that 'this section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it.'

A party seeking to enforce a foreign judgment under the Rule need not bring a suit on the judgment, but need only apply for registration of the foreign judgment in a Missouri Court having jurisdiction in the action, Rule 74.79(b), by filing a verified petition for the registration setting forth a copy of the judgment to be registered, the date of its entry and the record of any subsequent entries affecting it, all authenticated in the manner authorized by the laws of the United States or of this State, and a prayer that the judgment be registered. Rule 74.79(c). At any time after registration the petitioner is entitled to have summons issued and served upon the judgment debtor, as in an action brought upon the foreign judgment, for the purpose of obtaining jurisdiction of the judgment debtor. Rule 74.79(d). Also, at any time after the registration and regardless of whether jurisdiction of the person has been secured or final judgment has been obtained, a levy may be made under the registered judgment upon any property of the judgment debtor which is subject to execution or other judicial process for satisfaction of judgments. Rule 74.79(f). The judgment debtor must plead within 30 days after jurisdiction of his person has been obtained. If the judgment debtor fails to plead within the time specified or if the court after hearing has...