Pirtle v. Cook

• Decision Date: 25 November 1997
• Docket Number: No. 79785,79785
• Citation: 956 S.W.2d 235
• Parties: Tommy G. PIRTLE, Appellant, v. Shirley A. (Pirtle) COOK, Respondent.
• Court: Missouri Supreme Court

Page 235

956 S.W.2d 235

Tommy G. PIRTLE, Appellant, v. Shirley A. (Pirtle) COOK, Respondent.

No. 79785.

Supreme Court of Missouri En Banc.

Nov. 25, 1997.

Rehearing Denied Dec. 23, 1997.

J. Michael Bridges, Richard Dorr, Springfield, for Appellant.

Leo Chestnut, Springfield, for Respondent.

COVINGTON, Judge.

The marriage of Shirley A. Pirtle (Wife) and Tommy G. Pirtle (Husband) was dissolved in September of 1984. The trial court awarded maintenance to Wife and divided the marital property. Husband later filed a motion to terminate the maintenance award. On September 22, 1994, Wife filed a motion to revive judgment and request for declaratory judgment in which she attempted to revive a money judgment contained within the September 1984 decree. The trial court refused to modify the maintenance award and revived the earlier judgment. The Court of Appeals, Southern District, affirmed in part and reversed in part. This Court granted transfer to decide whether section 516.350.1, RSMo 1994, ¹ bars Wife's attempt to revive the September 1984 judgment. The judgment of the trial court is affirmed in part and reversed in part.

I.

Husband petitioned for a dissolution of marriage from Wife by a petition filed November 30, 1982. Trial was scheduled for September 10, 1984. On that date, the trial judge made the following docket entry:

Petr appears in person and by atty Harpool. Resp appears in person and by atty Elsey. Evidence heard, petition proven. Property settlement received and approved. Dissolution of marriage ordered per decree filed.

Also on September 10, the trial judge signed and entered a decree of dissolution of marriage. In several places in the decree, the words "Petitioner" and "Respondent" are transposed.

On September 24, 1984, the trial judge made the following docket entry:

Court is advised of typing error contained in Decree entered 9-10-84 and does enter Amended Decree of Dissolution reflecting correction of same. Copies of amended Decree forwarded to attys Elsey and Harpool.

The "amended decree" was signed and entered on September 26, 1984. The terms "Petitioner" and "Respondent" are used correctly in the amended decree.

The property settlement agreement to which the docket entry of September 10, 1984, referred is incorporated into the dissolution decree. It contains the following provisions:

3. It is mutually agreed that the parties are joint owners of real estate located at Fordland, Missouri, consisting of a farm with 106 acres and 100 acres, and more particularly described on Exhibit A attached hereto. This property is subject to a first deed of trust in favor of Empire Bank with a balance of $90,699.35 plus $11,090.26 interest (which accrues at the rate of $33.55 per day), and which property has a value of approximately $173,000.00. It is mutually agreed that the real estate shall be sold, and the proceeds, after cost of sale and payment of the indebtedness to Empire Bank, shall be divided between the parties, with wife to receive 65% of the net proceeds and Husband to receive 35% of the net proceeds.

4. As a division of the martial property, it is agreed and understood that wife shall receive from Husband the minimum sum of $40,000.00. However, such sum shall be paid from the proceeds of the sale of real estate above set out, but should such sale proceeds be insufficient to pay said sum of $40,000.00, then Husband shall make up the difference out of other assets owned by Husband. It is also understood that should the 65% of net proceeds from the sale of all the real estate exceed the sum of $40,000.00, that Wife shall receive any additional sum as her separate property that would result in a net to her of 65% of such sale net proceeds. Husband shall receive 35% of the net proceeds of such sale. It is further agreed that such sum agreed upon to be owed to wife shall be non-dischargeable in bankruptcy. Parties agree to confer with tax consultants prior to closing date of sales, so that each party will be able to have maximum benefits for tax purposes. It is further agreed that wife shall continue to live in the property rent free, until sale, but should she desire to remove herself therefrom, then Husband may move into the house and occupy it rent free until sale.

5. It is further agreed that the real estate shall be listed for sale immediately by the parties, and that the listing price on each farm shall be determined by the parties, but that the parties have agreed that a sale offer of $85,000.00 or above shall be acceptable to both parties, as to the 100 acres, and the price of $88,000.00 or above on the 106 acres.

The marital real estate did not sell, and the lender foreclosed on February 8, 1985. The parties received no proceeds from the foreclosure sale. Husband did not pay Wife the $40,000 specified in the decree.

In October of 1990, the parties commenced litigating various issues concerning the decree and property settlement agreement. During the course of the litigation, Husband filed a motion to modify seeking to terminate his obligation to pay periodic maintenance. On August 19, 1991, Wife filed a pleading styled "Motion to Enforce Judgment." Husband filed an answer to the motion to enforce raising affirmative defenses. The motion to enforce judgment was never heard by the trial court.

On September 22, 1994, Wife filed a "Motion to Revive Judgment and Request for Declaratory Judgment" in which she sought revival of the September 1984 judgment ordering Husband to pay her $40,000. The trial court entered an order to show cause. Husband filed a response to the motion to revive in which he reasserted his prior affirmative defenses. In addition, he asserted that he had not been properly served with the motion to revive and that more than ten years had passed since the date of the original dissolution decree. The trial court heard evidence on the motion to revive judgment, request for declaratory judgment, and motion to modify. The trial court then entered a judgment interpreting the property settlement agreement, reviving Wife's judgment, and denying Husband's motion to modify.

II.

Husband contends that the trial court erred in reviving Wife's judgment. Husband asserts that section 516.350.1 prevents the revival of the judgment because Wife filed her motion to revive more than ten years after the judgment was originally rendered. This Court agrees.

Section 516.350.1 provides as follows:

Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, except for any judgment, order, or decree awarding child support or maintenance which mandates the making of payments over a period of time, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatsoever.

Section 516.350.1 plainly states that judgments are conclusively presumed paid ten years after they were originally rendered unless a party has revived the judgment ² or entered a payment upon the record. Sec. 516.350.1. Once the conclusive presumption arises, the judgment cannot be revived and no suit can be maintained upon it. Id.

Because Wife's motion to revive was filed on September 22, 1994, the first question is whether the "original rendition" of the judgment in this case is the decree of dissolution entered on September 10, 1984, or the amended decree entered on September 26, 1984. If September 10 is the date of the original rendition of the judgment, then Wife's motion to revive was filed more than ten years after the judgment was originally rendered and is barred by section 516.350.1 unless properly revived in the interim. If, however, September 26 is the date of the original rendition of the judgment, then Wife's motion to revive fell within the ten year period specified by section 516.350.1.

When the September 10, 1984, decree was entered, it constituted the original rendition of the judgment. The docket entry shows that the trial court received the property settlement, approved it, and ordered the dissolution of the parties' marriage on September 10. On that day, the trial court also signed and entered the dissolution decree, which included Husband's obligation to pay Wife $40,000. Consequently, September 10 became the date of the original rendition of the judgment when the September 10 decree was entered. See Wormington v. City of Monett, 358 Mo. 1044, 1050, 218 S.W.2d 586, 589 (banc 1949).

The issue is whether the September 26 decree replaced the September 10 decree as the original rendition of the judgment. This, in turn, depends upon whether the September 26 decree is an order nunc pro tunc or an amended judgment entered pursuant to Rule 75.01. If the September 26 decree is a nunc pro tunc order, then it does not constitute the original rendition of the judgment because it relates back to the September 10 decree. See Cruces v. State, 452 S.W.2d 180, 182 (Mo.1970). If, however, the September 26 decree is a Rule 75.01 amended judgment, then it constitutes a new judgment and, consequently, is the original rendition of the judgment Wife now seeks to revive. See Kahn v. Kahn, 839 S.W.2d 327, 334 (Mo.App.1992). Consequently, Wife's motion to revive, filed on September 22, 1984, was timely only if the September 26...