Paul v. Paul

• Citation: 439 S.W.2d 746
• Decision Date: 14 April 1969
• Docket Number: No. 54246,54246
• Parties: Carolyn Louise PAUL, Appellant, v. Arno M. PAUL, Jr., Respondent.
• Court: United States State Supreme Court of Missouri

Page 746

439 S.W.2d 746

Carolyn Louise PAUL, Appellant, v. Arno M. PAUL, Jr., Respondent.

No. 54246.

Supreme Court of Missouri, En Banc.

April 14, 1969.

Joseph P. Teasdale, Pros. Atty., Phillip S. Brown, Asst. Pros. Atty., for appellant.

Jack J. Isgur, Frank Benanti, Kansas City, for respondent.

FINCH, Judge.

This is an appeal by plaintiff (wife) from a judgment dismissing her proceeding brought under the Missouri Uniform Reciprocal Enforcement of Support Law (Chapter 454, RSMo 1959, V. A.M.S. ¹) to enforce payment of support by defendant (husband) for their two minor children. The case was appealed to the Kansas City Court of Appeals, which reversed and remanded. However, that court transferred the case here pursuant to Art. V, § 10 of the Constitution of Missouri, 1945, V.A.M.S., when one of the judges on that court dissented and requested such transfer. Under that constitutional provision, we decide the case as on original appeal.

The sole issue presented on this appeal is whether the Circuit Court of Jackson County had jurisdiction to hear this proceeding for support under our Uniform Reciprocal Enforcement of Support Law (herein called 'Act'). We hold that it did and accordingly we reverse and remand.

The facts are not controverted. Most of them were recited in an agreed statement of facts. Plaintiff and defendant were divorced under a decree of the Circuit Court of Jackson County, Missouri, on February 2, 1965. That decree awarded custody of the two minor children to plaintiff and provided for payment by the husband to the wife of $11.25 per week per child for child support. Subsequently, the wife and children moved to Tucson, Arizona.

The husband became delinquent in payment of the child support installments and the wife then filed in the Superior Court of Pima County, Arizona, a complaint under the Arizona Uniform Reciprocal Enforcement of Support Act. The complaint alleged that the parties had been married and later divorced; that the two minor children born of the marriage were in need of support from their father under the Act; that defendant had been ordered to pay $22.50 per week for support under the divorce decree but was $1457.50 in arrears thereon; that $30.00 per week would be a reasonable amount to provide necessities, including needed medical attention for the children; that defendant continued to live in Kansas City where he was employed; that defendant was able to support the children but would not contribute support unless ordered to do so under supervision of a competent court; and that plaintiff was without funds, unable to hire an attorney, and needed assistance from the state in order to obtain support.

The Arizona court found that defendant owed a duty to support the minor children and that the wife had complied with the requirements of the law of Arizona. The court then certified the complaint, its certificate and order and a copy of the Uniform Reciprocal Support Act of Arizona to the Circuit Court of Jackson County, Missouri, for further proceedings under the Act.

After the complaint and other papers from Arizona were filed in the Circuit Court of Jackson County, and the defendant had been served with summons, he filed an answer ² and a motion to dismiss. He asserted in said motion that the Circuit Court of Jackson County had granted a divorce between the plaintiff and defendant in which decree the court had made an order regarding the care and custody of the minor children. He further alleged that in said proceeding the Circuit Court of Jackson County had acquired exclusive jurisdiction over the subject matter of the care, custody and support of the children, and that consequently it had no jurisdiction in this proceeding brought under the Enforcement of Support Act.

The trial court sustained the motion and dismissed the proceeding. In an opinion filed when it overruled plaintiff's motion to set aside the order of dismissal, the trial court held that the Circuit Court of Jackson County continued to have exclusive jurisdiction in the divorce action as to matters of child support. The opinion stated that plaintiff would be required to proceed in the divorce case to enforce the existing order of support or to seek any modification thereof, citing Welch v. McIntosh, Mo.App., 290 S.W.2d 181, in which the St. Louis Court of Appeals held that the Circuit Court of St. Louis County did not have jurisdiction of a proceeding brought under the Missouri Uniform Support of Dependents Law (§§ 454.010 to 454.200, inclusive, RSMo 1949, V.A.M.S.). The petition therein by the wife (then a resident of Iowa) sought to force support of his minor children by the husband who resided in St. Louis is County. The decision was based on the theory that the Circuit Court of Buchanan County, which previously had entered a decree of divorce awarding custody of the minor children to the wife and ordering payment of support money, retained exclusive jurisdiction with respect to the custody and maintenance of those children.

The question presented is one of statutory interpretation. Welch v. McIntosh, supra, involved the older Uniform Support of Dependents Law which was repealed and superseded in 1959. The present Act contains sections which were not included in the older Support of Dependents Law and were not construed in the Welch case.

Our problem, then, is to determine the intent of the General Assembly in Chapter 454 as adopted in 1959. Was that chapter intended to provide for jurisdiction of Missouri circuit courts in support proceedings such as this or does it leave exclusive jurisdiction as to support for a minor child in the Missouri court which previously had granted a divorce between the parents of that child? In deciding this question, we look at the statutes regarding jurisdiction in divorce actions and the cases construing those statutes, as well as at Chapter 454.

The subjects of divorce, alimony and separate maintenance are governed by Chapter 452. Section 452.070 thereof provides that when a divorce is adjudged, 'the court shall make such order touching * * * the care, custody and maintenance of the children * * * as * * * shall be reasonable * * *. The court, on the application of either party, may make such alteration, from time to time, as to the allowance of alimony and maintenance, as may be proper * * *.' On the basis of this provision, the courts of this state have held on numerous occasions that the court granting the divorce has a continuing, exclusive jurisdiction of the care, custody and maintenance of the children until they reach majority. Morgens v. Morgens, Mo.App., 164 S.W.2d 626; Salkey v. Salkey, Mo.App., 80 S.W.2d 735. It was this doctrine on which the St. Louis Court of Appeals based its decision in the case of Welch v. McIntosh, supra. It is the rule on which the husband now relies. However, the Legislature may provide for exceptions to this rule. This court, in the recent case of State ex rel. Dubinsky v. Weinstein, Mo., 413 S.W.2d 178, recognized that the chapter on divorce does not confer in every instance the exclusive jurisdiction of the care and custody of a minor child on the court which has granted a divorce as between the parents of that child. In Dubinsky the court held that the General Assembly had provided in the Juvenile Code that under certain circumstances the juvenile court should have jurisdiction over the child, and that this would supersede the jurisdiction of the divorce court. The Dubinsky opinion gave effect to that legislative intention.

Various sections of the Act indicate to us an intention by the General Assembly to provide for jurisdiction in support cases such as the one here presented. These sections indicate a legislative intent to provide for an additional, expeditious, inexpensive way to enforce performance of obligations of support. In the first place, the Act specifically so states in § 454.030, wherein it says: 'The remedies herein provided are in addition to and not in substitution for any other remedies.' This language indicates to us that the remedy provided is not intended to take away the right of a party to pursue the enforcement of a prior order of support in a divorce decree, but it just as clearly indicates that an additional means of enforcing support is provided. We recognize that the St. Louis Court of Appeals in Welch v. McIntosh did not so construe identical language in the old Support of Dependents Law, but when we consider all of the provisions of the 1959 Act, we construe this section as we havesection as we have indicated. We find nothing in the language of the Act which indicates an intention that an exception is created where some Missouri court has granted a divorce previously. Neither do we find any provision which indicates that by filing her suit for divorce the wife made an election of remedies which would prevent subsequent utilization of the Uniform Support Act.

The Act also provides in § 454.270 that no proceeding under Chapter 454 'shall be stayed because of the existence of a pending action for divorce, separation, annulment, dissolution, habeas corpus or custody proceeding.' Application of this section is not made dependent on whether such action for divorce is elsewhere than in Missouri, or whether a divorce has been granted or a divorce action is pending. It simply states unequivocally that the pendency of such other action does not stay proceedings to enforce support under the Act. ³ Again this indicates that the Act provides an additional remedy to enforce a duty to support and that the jurisdiction of the divorce court is not exclusive in the enforcement of support.

Section 454.280 further supports the conclusion we reach. It provides as follows: 'No order of support issued by a court of this state when acting as a responding state shall supersede any other order of support but the amounts for a particular period paid pursuant to either order shall be credited against amounts...