Pflanz v. Pflanz

• Decision Date: 08 February 1944
• Docket Number: No. 26555.,26555.
• Citation: 177 S.W.2d 631
• Parties: OTTILDA PFLANZ, RESPONDENT, v. HARRY PFLANZ, APPELLANT.
• Court: Missouri Court of Appeals

177 S.W.2d 631

OTTILDA PFLANZ, RESPONDENT, v. HARRY PFLANZ, APPELLANT.

No. 26555.

St. Louis Court of Appeals, Missouri.

Opinion filed February 8, 1944.

Appellant's motion for rehearing overruled and opinion modified by the Court on its own motion February 29, 1944.

Appeal from the Circuit Court of the City of St. Louis. — Hon. Michael J. Scott, Judge.

REVERSED AND REMANDED (with directions).

Joseph T. Davis for appellant.

(1) Execution cannot issue on an installment alimony judgment for defaulted installments unless the party seeking execution makes affidavit or application setting forth the installments in default as a basis to calculate the amount due, and failure so to do entitles defendant to have the execution quashed. Sec. 1519, R.S. Mo. 1939; Wyatt v. Fromme, 70 Mo. App. 613; Francis v. Francis, 192 Mo. App. 710, 726; Nelson v. Nelson, 282 Mo. 412, 424; State ex rel. v. Hostetter, 129 S.W. (2d) 1, 4; Millisack et al. v. O'Brien, 223 Iowa, 752, 273 N.W. 875; Cotton v. Wright, 193 La. 520, 190 So. 665; 19 C.J., sec. 711; 23 C.J. 540, sec. 423; 23 C.J. 317, sec. 22. (2) It was error for the court to assume that the burden was on defendant to prove what installments he had not paid, and failure to sustain defendant's motion to stay and quash execution based upon uncontradicted testimony of defendant.

Harry A. Levi and John W. Barry for respondent.

(1) Defendant's motion to quash and stay execution was properly overruled. Plaintiff did not base her case upon the affidavit, but upon the decree by the terms whereof she was granted an execution. The affidavit was merely to inform the sheriff the maximum amount of money or property of defendant he should seize under said execution, so as to prevent an overlevy and, in case of garnishment, as is the case at bar, to inform the garnishee the maximum amount of defendant's wages to be withheld. (2) The execution was granted pursuant to Section 1519, R.S. Mo. 1939. (3) There is no exemption on execution for alimony (Anderson v. Hardware Co., 134 Mo. App. 188, 113 S.W. 733, Sec. 3377, R.S. 1939). (4) A judgment for alimony or maintenance is treated the same as any other judgment and execution may issue on the same (McElvain v. McElvain, 221 Mo. App. 138, 296 S.W. 460). (5) Execution may issue upon a judgment at any time within ten years after the rendition thereof. Section 1278, R.S. 1939, p. 358. "Burden of proof of proving payment is upon the party pleading it." 30 Cyc. 1264; Ferguson v. Dalton, 158 Mo. 323, 59 S.W. 88; Oil Well Supply Co. v. Wolfe, 127 Mo. 616, 30 S.W. 145, 28 S.W. 167; Yarnell v. Anderson, 14 Mo. 619; Griffin v. Creighton, 61 Mo. App. 1; Oil Well Supply Co., Limited, v. Wolfe, 127 Mo. 616; Ferguson et al. v. Davidson et al., 59 S.W. 88; Lambert v. Gutman, 171 S.W. (2d) 735.

McCULLEN, J.

This is an appeal from an order of the Circuit Court of the City of St. Louis overruling a motion of defendant to quash and stay an execution theretofore issued at plaintiff's request.

It appears from the record that on April 18, 1935, in said court, plaintiff was granted a divorce from defendant and was also awarded custody of their minor child, a girl, then twelve years of age. In the divorce decree it was ordered that plaintiff recover of defendant as and for her alimony, and for the support and maintenance of the minor child, the sum of ten dollars per week until further order of the court, four dollars thereof as alimony for the support of plaintiff and six dollars thereof as an allowance for the support of the minor child, "payable on Thursday of each week, the first payment to be made and to become due and payable forthwith, and that the defendant pay the costs of this proceeding, and in default of the payment of said costs, or any of the installments awarded as aforesaid as alimony and for the support of said child, as and when same become due and payable, execution issue therefor."

On August 12, 1942, plaintiff filed in the court a statement entitled "Affidavit of Nonpayment of Allowance," which alleged the facts as to the granting of the divorce on April 18, 1935, and the orders of the court with respect to alimony and the allowance for the support of the minor child, and stated the amounts thereof respectively, as well as the time for payment of the same, all as above stated. The affidavit further alleged:

"Plaintiff further states that part of said allowance has been paid, but there is still due to plaintiff the sum of nine hundred and fifty dollars for her support and the support past due of their minor child."

The above affidavit was signed and sworn to by plaintiff. Upon the same date, namely, August 12, 1942, upon plaintiff's request, based upon the above affidavit, the execution involved herein was issued by the clerk of the circuit court and directed to the sheriff of the City of St. Louis, commanding said sheriff:

"These are, therefore, to command you that of the goods and chattels and real estate of said Harry Pflanz, you cause to be made $950.00, debt, interest, cost and charges."

The execution was returnable to the December Term, 1942, of said court. The St. Louis Independent Packing Company was served and summoned as garnishee thereunder.

The record shows that up to the return day of the writ of execution said garnishee owed wages to defendant amounting to $536.10, but returned, under said garnishment, ten per cent thereof, amounting to $53.61.

On October 2, 1942, defendant filed in the circuit court a motion to quash and stay the execution in which, after referring to the affidavit of plaintiff upon which the execution was based, he alleged:

"Said affidavit is not in conformity with the law and the rules of this Court in that it is merely stating a general conclusion and does not state facts sufficient for this defendant or the Court to ascertain and determine the weekly payments claimed by plaintiff nor the truth and accuracy as to said amount.

"This defendant has been paying said weekly installments and denies that he owes plaintiff or is indebted to plaintiff in any such sum as $950.00 or anywhere near said amount and, therefore, is entitled to know specifically the facts and basis of said claim.

"The plaintiff, based upon such improper affidavit, has brought a garnishment against defendant's employer and has tied up all of defendant's wages and earnings so that he is unable to purchase the necessities for himself, his wife and minor child to live on and, in order to have said garnishment released, plaintiff is demanding of and trying to coerce defendant into a settlement on the basis of said false and unjust sum of $950.00.

"The said minor child referred to in the decree and for whose support the Court provided $6.00 per week, and which weekly allowance is included in said affidavit of plaintiff, has been and now is married and is in no way dependent upon plaintiff for such support. Said minor child since her marriage does not reside in the State of Missouri."

Defendant's above motion was verified by his affidavit.

The trial and hearing on defendant's motion to quash and stay the execution was held on December 18, 1942, during which, in open court, counsel for plaintiff excluded the demand for any amount for the support and maintenance of the minor child, but did not change the amount of $950 stated in the affidavit, upon which the execution was based. In this connection, plaintiff's counsel told the court:

"I believe I stated in my affidavit the question of the child. Under our affidavit, for the first five years from the age of thirteen, which she was at the time of granting of the decree in 1935, and she did go to work at approximately, I might say eighteen. We have ceased that court order of asking for the additional $6.00 in our affidavit, so up to the present day from 1940 up to the time of the filing of the execution, approximately two years, we are not asking for anything in this judgment for the child."

At the beginning of the hearing on the motion to quash the execution defendant objected to proceeding in the matter on the ground that the affidavit filed in the cause did not make out a prima-facie case as to any amount due plaintiff from defendant; that the amount set forth in the affidavit was of a general character, namely $950; that it did not state the dates of defendant's failure to pay the alimony, but stated one general sum covering a period of seven years. The court overruled the objection and defendant saved his exceptions. Defendant then testified that he was in the employ of the St. Louis Independent Packing Company and had been working there the past four years; that he had married again and his present family consists of his wife, a sixteen months old child as well as an eight year old son of his present wife; that he has supported and is supporting his family; that he had paid plaintiff all of the amounts specified in the decree up to May 15, 1942; that his daughter, the minor child involved, had been married since September, 1942, and resides in Philadelphia, Pennsylvania.

On cross-examination defendant testified that since 1935 he had made most of the installment payments by money orders, for which he had receipts, but that some payments were made in cash; that after 1935 there was a period of about two years during which he was not regularly employed and during that period he lost three to four months during which he was unable to pay his wife the regular weekly alimony and support money, but that he kept up his installment payments as best he could; that in his opinion he does not owe plaintiff anything for that period because he paid up any delinquent installments as soon as he resumed work; that since working for the Independent Packing Company, during the last four years, he had not missed a single payment; that between 1936 and 1937 he and plaintiff lived together as man and wife, and that from January to August of that year he gave her his entire weekly wages of $39 to...