Pourney v. Seabaugh, No. 41780

CourtMissouri Court of Appeals
Writing for the CourtRaymond H. Vogel, Cape Girardeau, for respondent
Citation604 S.W.2d 646
PartiesLloyd 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.
Decision Date15 October 1980
Docket NumberNo. 41780,41867.

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.


604 S.W.2d 647

COPYRIGHT MATERIAL OMITTED

604 S.W.2d 648

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

604 S.W.2d 649
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...

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14 practice notes
  • Pinsky v. Duncan, No. 9
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 22, 1996
    ...proceedings. § 4.8 n. 5 at 4:63-:64 (citing Sherwin-Williams Co. v. Crovetto, 388 So.2d 109 (La.Ct.App.1980); Pourney v. Seabaugh, 604 S.W.2d 646 (Mo.Ct.App.1980); Seay v. Greenwood, 21 Ala. 491 (1852); Donnell v. Jones, 13 Ala. 490 (1848); McLaughlin v. Davis, 14 Kan. 168 (1875); Talbot v.......
  • Marriage of Holt, In re, No. 63291
    • United States
    • United States State Supreme Court of Missouri
    • July 6, 1982
    ...when the order for installment payments is entered. 1 See, e.g., id.; Walls v. Walls, 620 S.W.2d 11 (Mo.App.1981); Pourney v. Seabaugh, 604 S.W.2d 646 (Mo.App.1980). These and other cases, however, have failed to recognize the peculiar nature of future periodic payments and instead have rel......
  • Tudor v. Tudor, No. 11649
    • United States
    • Court of Appeal of Missouri (US)
    • May 26, 1981
    ...unless the payee spouse is astute and wary enough to revive the judgment or enter the payments upon the record. Pourney v. Seabaugh, 604 S.W.2d 646, 649-650(1, 2), (3) However, the cautious reader of Pourney and similar opinions must be alert to the fact that those cases deal with decretal,......
  • Shockley v. Harry Sander Realty Co., Inc., No. 54634
    • United States
    • Missouri Court of Appeals
    • June 6, 1989
    ...for a garnishment action is ten years, as provided in § 516.350. Walls v. Walls, 673 S.W.2d 450, 450 (Mo.App.1984); Pourney v. Seabaugh, 604 S.W.2d 646, 649-50 (Mo.App.1980). It follows that the ten-year limitation applies in a case seeking an equitable remedy as it does in a case seeking a......
  • Request a trial to view additional results
14 cases
  • Pinsky v. Duncan, No. 9
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • March 22, 1996
    ...proceedings. § 4.8 n. 5 at 4:63-:64 (citing Sherwin-Williams Co. v. Crovetto, 388 So.2d 109 (La.Ct.App.1980); Pourney v. Seabaugh, 604 S.W.2d 646 (Mo.Ct.App.1980); Seay v. Greenwood, 21 Ala. 491 (1852); Donnell v. Jones, 13 Ala. 490 (1848); McLaughlin v. Davis, 14 Kan. 168 (1875); Talbot v.......
  • Marriage of Holt, In re, No. 63291
    • United States
    • United States State Supreme Court of Missouri
    • July 6, 1982
    ...when the order for installment payments is entered. 1 See, e.g., id.; Walls v. Walls, 620 S.W.2d 11 (Mo.App.1981); Pourney v. Seabaugh, 604 S.W.2d 646 (Mo.App.1980). These and other cases, however, have failed to recognize the peculiar nature of future periodic payments and instead have rel......
  • Tudor v. Tudor, No. 11649
    • United States
    • Court of Appeal of Missouri (US)
    • May 26, 1981
    ...unless the payee spouse is astute and wary enough to revive the judgment or enter the payments upon the record. Pourney v. Seabaugh, 604 S.W.2d 646, 649-650(1, 2), (3) However, the cautious reader of Pourney and similar opinions must be alert to the fact that those cases deal with decretal,......
  • Shockley v. Harry Sander Realty Co., Inc., No. 54634
    • United States
    • Missouri Court of Appeals
    • June 6, 1989
    ...for a garnishment action is ten years, as provided in § 516.350. Walls v. Walls, 673 S.W.2d 450, 450 (Mo.App.1984); Pourney v. Seabaugh, 604 S.W.2d 646, 649-50 (Mo.App.1980). It follows that the ten-year limitation applies in a case seeking an equitable remedy as it does in a case seeking a......
  • Request a trial to view additional results

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