Penney v. White

• Decision Date: 04 February 1980
• Docket Number: No. KCD,KCD
• Citation: 594 S.W.2d 632
• Parties: In re the Marriage of Kerry K. (White) PENNEY, Appellant, v. Garry (Gary) L. WHITE, Respondent. 30341.
• Court: Missouri Court of Appeals

Page 632

594 S.W.2d 632

In re the Marriage of Kerry K. (White) PENNEY, Appellant, v. Garry (Gary) L. WHITE, Respondent.

No. KCD 30341.

Missouri Court of Appeals, Western District.

Feb. 4, 1980.

Timothy A. McNearney, Independence, for appellant.

James S. Cottingham, Independence, for respondent.

Before SHANGLER, P. J., and SWOFFORD and CLARK, JJ.

SHANGLER, Presiding Judge.

The wife brought a motion to show cause why the husband should not be held in contempt of court for willful failure to comply with an order of child support. The husband responded by motion to modify the decree of dissolution by an order to decrease the obligation for child support. In the course of proceedings, the parties submitted to the court for construction the property settlement agreement concluded by them as incident to the dissolution.

The court adjudged that the wife and husband (both since remarried) had settled and compromised the past-due child debt and that the husband owed the wife no arrears as of the date of trial. The court adjudged reduction of child support from $200 to $150 per child per month and that the husband make payment through the Court Administrator. In effect, the court denied remedy to the wife and granted remedy to the husband. The court declared the property settlement agreement to be ambiguous and construed the terms in a manner detrimental to the wife. She appeals from these adverse orders.

The dissolution was adjudged in 1973. Custody of the two children, one male and one female, and $200 per child per month for their support were awarded the wife. (The husband and wife have since each remarried.) Soon after the entry of judgment the husband became delinquent and the support payments continued fitful so that by the time of hearing, he was $5,250 in arrears. In 1974, the wife resorted to the Jackson County Prosecutor to help collect the $1,200 support money then due. The husband responded with an $800 remittance. The wife expressed displeasure to the prosecutor with the fragmentary collection and had decided to engage private counsel for further collection when the husband made additional remittances.

Then, in December, 1974 (apparently while the matter still pended before the prosecutor), the husband simply told the wife by telephone that he intended to pay $250 each month rather than the full $400 support obligation. The wife remonstrated, but she was desperate and so did not resist. From then on the husband remitted, albeit irregularly, $250 to $275 per month as child support money. The wife acknowledged she received these amounts but without agreement to forgo the full award of the court. The husband did not refute this evidence and gave no account for his delinquency.

On this evidence the court adjudged that the husband and wife settled and compromised the past-due child support obligation and, accordingly, exonerated the husband of willful noncompliance with the judgment.

An order for child support encompassed in a decree of dissolution and owed by one spouse to another becomes a judgment debt. And, as with any other debt, a past-due judgment may be settled or compromised by the parties upon adequate consideration. Kennedy v. Kennedy, 575 S.W.2d 833, 835(3-4) (Mo.App.1978). Such an accord and satisfaction is an affirmative defense which the proponent (the husband here) has the burden to prove. Karleskint v. Karleskint, 575 S.W.2d 845, 846(1-5) (Mo.App.1978). The husband made no plea to the motion of the wife to adjudge him in contempt for willful disobedience to the order of the court to make payment. ¹ The evidence given by the wife of the initiative of the husband for reduced support payment cannot be understood to have introduced the defense of accord and satisfaction, but rather was meant as another proof that the failure of the husband to comply with the judgment was contumacious. The proof on that issue, although from the wife alone, was redundantly emphatic: "I was desperate at the time, and I wasn't going to refuse some money"; "I wasn't going to not accept it because it wasn't the four hundred dollars a month, you know." The wife asserted repeatedly that she never agreed to the lesser payment nor waived any balance on the judgment. The husband offered neither refutation nor other justification for his delinquency. Whether or not the defense of accord and satisfaction was legitimately before the court, there was no evidence to sustain the judgment that the parties settled and compromised the past-due child support.

Rodgers v. Rodgers, 505 S.W.2d 138 (Mo.App.1974) cited by the court in the memorandum of judgment does not support the adjudication. That case found an intention to compromise and settle past-due child support from the admission of the wife that the purpose of her proceeding against the husband was not for past-due payments but for an increase in the original allowance to meet increased needs of the children. The wife in Rodgers was found to have used the delinquency of the husband to deprive him of visitation and to lull him by her ostensible disinterest. Thus, the judgment in Rodgers was sustained on acquiescence and other equitable principles soundly exercised by the trial court. The evidence before us, however, prompts no equity for the husband. The insistence of the wife for compliance with the judgment was tenacious and unabated. When the husband became delinquent she resorted to the prosecutor. It was only when that office informed her that the $800 recovered by them was "all that (the husband) had," that the wife decided to accept what he could give. A party is bound by an accord and satisfaction only by a well-understood and concluded agreement to settle all demands in dispute. Payment of part of a debt does not satisfy the whole debt in the absence of an agreement supported by a consideration. Sturmville Lumber Company v. Davis, 416 S.W.2d 49, 50(1-5) (Mo.App.1967); Kennedy v. Kennedy, supra, l.c. 834(1-4).

No substantial evidence supports the premise of the judgment that the parties came to an accord and satisfaction agreement of the past-due child support judgment on a consideration. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The wife was entitled to judgment on her motion for the $5,250 delinquency established by the evidence uncontested by the husband. The other orders on that motion designation of the Court Administrator as trustee to receive the child support payments on behalf of the wife and the grant of permission to her to remove the children to Colorado where the present husband was posted are not contested and remain in effect. Nor does the wife appeal from the denial of a judgment of contempt against the husband.

The court sustained the separate motion of the husband to reduce the child support obligation from $200 to $150 per child per month. The husband made proof that since the entry of the original award in 1973 his earned income went into steady decline. From that date, when the profits from his construction business for that year were $30,000, his income reduced steadily to about $9,000 annually. The husband attributed that event to the radical inflation and attendant rise in the interest rate which made the cost of such construction less predictable and the profit less secure. There was evidence that he had purchased through the construction company account an expensive Continental automobile, but the husband explained that those funds derived from his present wife. He explained, also, that the home which he occupied appraised at $110,000, but subject to a $65,000 mortgage was merely a show home for sale. Other loan documents submitted to the bank by the husband recited the net worth of the construction company at $4,050. There was other evidence that the husband lived extravagantly and took frequent trips to Las Vegas to cavort and gamble. There was testimony also that the former wife was steadily employed during that period at a $10,000 annual wage. She had relinquished that position at the time of hearing because of an expected child, to give her time to her children, and because her present husband had been relocated to a legal post in Colorado. The court chose to draw from the evidence inferences favorable to the position of the husband. The judgment to reduce the child support rests on substantial evidence. Murphy v. Carron, supra, l.c. 32(1-3).

One issue remains. The parties presented to the court at pretrial conference, without prior pleading or other formal initiative, the construction of the property settlement agreement concluded by them antecedent to the dissolution. The preamble to agreement declared the purpose as a mutual desire, in view of the pendent dissolution proceeding, "in all respects (to) settling their property rights between themselves so that neither party hereafter may have any claim against the other because of the marital relations existing between (them)." (Emphasis added.) The agreement then set off to each party the owned personal effects to which the other party released any claim. The wife assigned and conveyed to the husband all interest in a building lot and two homes under construction and to a jointly-held automobile. The husband assigned and conveyed to the wife all interest in the household goods (with some exception) installed at the residence and (by paragraph 2, the provisions submitted for judicial construction)

all of his right title and interest in and to the real estate including the home and improvements located thereon (at the residence) presently owned by said parties as tenants by the entirety to (the wife) by Special Warranty Deed. The parties agree that the approximate market value of said real estate and improvements is $42,000 subject to an encumbrance (of) approximately $28,000 all of which the (wife) agrees to assume and pay. Said property shall be held by (the wife) and that upon the sale of the property by (the wife) or her remarriage, (the husband) requests that...