Pourney v. Seabaugh

• Decision Date: 15 October 1980
• Docket Number: No. 41780,41867.,41780
• Parties: Lloyd L. POURNEY, Respondent, v. Mildred L. Pourney SEABAUGH and Zexia Lee Pourney; Mildred L. Pourney Seabaugh, Appellants. Lloyd L. POURNEY, Respondent, v. Mildred L. Pourney SEABAUGH and Zexia Lee Pourney; Zexia Lee Pourney, Appellants.
• Court: Missouri Court of Appeals

604 S.W.2d 646

Lloyd L. POURNEY, Respondent, v. Mildred L. Pourney SEABAUGH and Zexia Lee Pourney; Mildred L. Pourney Seabaugh, Appellants.

Lloyd L. POURNEY, Respondent, v. Mildred L. Pourney SEABAUGH and Zexia Lee Pourney; Zexia Lee Pourney, Appellants.

Nos. 41780, 41867.

Missouri Court of Appeals, Eastern District, Division Four.

July 22, 1980.

Motion for Rehearing and/or Transfer Denied September 12, 1980.

Application to Transfer Denied October 15, 1980.

COPYRIGHT MATERIAL OMITTED

Albert C. Lowes, Buerkle, Lowes & Beeson, Jackson, Francis J. Toohey, Jr., Perryville, for appellants.

Raymond H. Vogel, Cape Girardeau, for respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied September 12, 1980.

SMITH, Presiding Judge.

Defendants appeal from the action of the trial court in sustaining plaintiff's motions for summary judgment against both defendants. Defendant Seabaugh also appeals from the trial court's order dismissing her counterclaim.

Plaintiff is the former husband of defendant Seabaugh. They were divorced on September 24, 1959. That decree provided for the payment of $40 per month by plaintiff for the support of the two children of the marriage-then 11 and 4 years of age. Defendant Pourney is the executor of the estate of Francis Pourney, father of plaintiff. On July 26, 1978, defendant Seabaugh caused to have issued an execution and garnishment directed to defendant Pourney to recover for unpaid child support under the 1959 decree. The summons to garnishee was dated August 2, 1978, was served August 8, 1978, and was returnable September 25, 1978. On August 21, 1978, the Probate Court of Perry County, Missouri, entered its approval of final settlement and order of distribution in the estate of Francis Pourney. The order of distribution called for distribution to plaintiff of $7,759.51. Interrogatories were directed to garnishee on August 8 and answers were filed on August 15. On August 23, a satisfaction of judgment in the underlying divorce case was filed by defendant Seabaugh.

Plaintiff then filed the present suit against both defendants. The allegation against Seabaugh was that she wrongfully obtained the execution. The allegations against defendant Pourney were that he failed to notify plaintiff of the garnishment and voluntarily paid over to Seabaugh the funds from the estate belonging to plaintiff. Plaintiff alleged that he had good defenses to the garnishment to-wit: (1) that the judgment was conclusively presumed paid under Sec. 516.350 R.S.Mo. 1978, (2) that the written judgment erroneously reflected the amount of child support actually ordered by the judge and (3) the children had become emancipated before they reached the age of 21.

Defendant Seabaugh filed an answer and a counterclaim. The answer alleged that plaintiff did in fact have knowledge of the garnishment proceedings and that the garnishment proceedings are res judicata of the claimed defenses to that proceeding set forth in plaintiff's petition. She also denied wrongfully obtaining an execution or garnishment. Her counterclaim sought $68,000 for common law support of the children.

Defendant Pourney answered and filed a cross-claim against Seabaugh. The answer admitted that he paid Seabaugh $7700 pursuant to the garnishment and admitted he did not give plaintiff notice of the garnishment proceeding because "the whereabouts of plaintiff were unknown to the defendant as he left town without any word as to where he might or could be located."

Plaintiff filed his motions for summary judgment and to dismiss defendant Seabaugh's counterclaim. His affidavits in support stated that he had no notice or knowledge of the execution and garnishment, and that the 1959 judgment had not been revived nor had any record of payments been entered on the record of the judgment. Defendant Seabaugh's affidavit in opposition to the motion for summary judgment asserted that she had received sporadic payments on the judgment from plaintiff, but had borne almost the whole support for the children during their minorities. There was no denial of the facts in plaintiff's affidavits that no revival had been made and that no payments had been entered on the judgment record.

The trial court granted plaintiff's motions for summary judgment and his motion to dismiss the counterclaims and held such rulings final for purpose of appeal. Rule 81.06. The cross-claim of defendant Pourney is still pending. Defendant Seabaugh challenges the summary judgment on the basis (1) that she had no obligation to notify plaintiff of the execution and garnishment, (2) that plaintiff did not attack the execution and garnishment directly and may not now make a collateral attack thereon and (3) that the allegations of payment tolled the applicability of Sec. 516.350 and created an issue of fact. She contends that the court erred in dismissing the counterclaim because she did state a cause of action for common law support. Defendant Pourney premises error solely upon the third ground asserted by Seabaugh against the summary judgment. We will attempt to unravel the issues in a somewhat different sequence than have the parties.

We deal first with the status of the 1959 judgment. Sec. 516.350 provides that "every judgment, order or decree of any court of record . . . shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof . . ." unless revived or unless payment has been made on the judgment "and duly entered upon the record thereof." This presumption is conclusive and no execution or process shall issue on such judgment.

In Mayes v. Mayes, 342 Mo. 401, 116 S.W.2d 1 (1938) the court held the predecessor statute was applicable to judgments for periodic alimony and child support payments. That decision has been consistently followed in Missouri. See, Swan v. Shelton, 469 S.W.2d 943 (Mo.App.1971); Lanning v. Lanning, 574 S.W.2d 460 (Mo. App.1978). The statute is apparently designed to replace the common law doctrine that forebearance for 20 years unexplained, unaccounted and unrebutted extinguishes the right of action on a judgment. The Missouri statute originally enacted created a presumption after 20 years, rebuttable by proof of partial payment or written acknowledgment. In 1895, that statute was repealed and what is essentially the present one was enacted. Except for revival or partial payment entered on the record the presumption is conclusive after 10 years. Under such a presumption even admission that the judgment was not paid would not destroy the presumption. Northwestern Brewers Supply Co. v. Vorhees, 356 Mo. 699, 203 S.W.2d 422 (1947). Precisely what the legislative intent was in enacting the statute is not clear. The degree to which it parallels Sec. 511.360, R.S.Mo. 1978, at least suggests that its purpose may have been to afford a certainty to titles to real estate and eliminate the danger of liens created by long since dormant or satisfied judgments. It is arguable that whatever the purpose of the statute it is fully satisfied by an interpretation that the ten years commences to run on periodic payments mandated by a judgment when the payment becomes due and not when the judgment is entered. See 137 A.L.R. 884, l.c. 890, 70 A.L.R.2d 1250, l.c. 1258. As the statute and the cases now stand a former spouse who regularly pays the decreed weekly or monthly payments may stop such payments on the tenth anniversary of the decree unless the other spouse has been wary enough to revive the judgment or to enter the payments on the record. Such a result does not commend itself. But the statute is so worded to leave little room for an interpretation that the ten year period commences when the payment becomes due, and Missouri courts have refused to so interpret it. Mayes v. Mayes, supra.

Mayes, supra, also makes it clear that a partial payment can toll the statute only if it is entered on the judgment record. We find nothing in the dicta in the memorandum on motion for rehearing in Lanning v. Lanning, supra, which could or does change that holding by the Supreme Court. The pleadings and affidavits before the trial court on the motion for summary judgment clearly established that the judgment was almost 19 years old at the time execution was sought, that it had not been revived, and that no payments on the judgment had been entered on the record of judgment. The judgment was, under the statute, conclusively presumed paid and no execution could issue thereunder. We will return to the effect of this legal result upon plaintiff's claims after we discuss the counterclaim.

It was also recognized in Mayes, supra, that there exists in the law a common law right of a mother to recover from the father the necessary and reasonable support and maintenance furnished by her for a child. Whether such could be recovered where there also exists a divorce decree mandating support payments was left open in Mayes, supra. See also Lodahl v. Papenberg, 277 S.W.2d 548 (Mo.1955). In Davis v. Gould, 234 Mo.App. 42, 131 S.W.2d 360 (1939) the court was confronted with exactly the problem presented to us. The court held that when the judgment for child support became ineffective (because presumed paid) after ten years, the mother was from that time on in the same situation as a mother with decreed custody of a child where the decree is silent about maintenance. See Kelly v. Kelly, 329 Mo. 992, 47 S.W.2d 762 (banc 1932). Davis v. Gould, supra, held that under those circumstances the...