Rodgers v. Rodgers

• Decision Date: 22 January 1974
• Docket Number: No. 35087,35087
• Citation: 505 S.W.2d 138
• Parties: Willie May RODGERS (Busse) etc., Plaintiff-Appellant, v. Connie RODGERS, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 138

505 S.W.2d 138

Willie May RODGERS (Busse) etc., Plaintiff-Appellant, v. Connie RODGERS, Defendant-Appellant.

No. 35087.

Missouri Court of Appeals, St. Louis District, Division One.

Jan. 22, 1974.

William D. Kimme, Washington, for plaintiff-appellant.

Hansen, Stierberger & Hartley, Daryl K. Hartley, Union, for defendant-respondent.

KELLY, Justice.

This is an appeal from a judgment of the Circuit Court of Franklin County, Missouri, wherein the trial court denied plaintiff's motion to modify the child support and maintenance award decreed on April 26, 1957, when the plaintiff was granted a divorce from the defendant, ¹ and also sustained defendant's motion to quash a writ of sequestration attaching defendant's pay as a deputy sheriff of Franklin County, Missouri, to satisfy a debt of $6,600.00 allegedly due plaintiff for unpaid child support and maintenance.

Plaintiff contends that the trial court erred in the following respects: 1) in sustaining defendant's motion to quash the writ of sequestraction; 2) in denying plaintiff's motion to modify the divorce decree and increasing the child support and maintenance awards decreed in the divorce decree of April 26, 1957; and 3) in making inconsistent rulings with respect to 1) and 2).

We hold that the trial court did not err as charged by the plaintiff, and therefore affirm.

In reviewing the decision of the trial court in a proceeding to modify the divorce decree with respect to child support payments, the court of appeals is required to review the case upon both the law and the evidence as in suits of an equitable nature, and the trial court's determination will not be set aside unless it clearly appears there has been an abuse of discretion. Toth v. Toth, 483 S.W.2d 417, 423(10) (Mo.App.1972); Bagley v. Bagley,460 S.W.2d 736, 737 (Mo.App.1970); Brosam v. Brosam, 437 S.W.2d 694, 697(4) (Mo.App.1969), Rule 73.01(d) V.A.M.R. The same is true with respect to defendant's motion to quash the writ of sequestration. Rule 73.01(d). We should defer to the trial court's findings on factual issues unless they are in conflict with the preponderance of the evidence and disclose a manifest abuse of discretion. Pelts v. Pelts, 425 S.W.2d 269, 270(4) (Mo.App.1968).

The trial court was not requested by the parties to make any findings of fact or conclusions of law and except for stating in the 'Judgment' that it found 'that the allegations in the defendant's motion to Quash Writ of Sequestration issued on April 26, 1972, to be true' and that 'the allegations in the plaintiff's Motion to Modify Divorce Decree is without merit' we are not more fully advised in these respects. We proceed therefore to make a determination whether, under the evidence and the reasonable inferences therefrom, the judgment of the trial court was in conflict with the preponderance of the evidence and disclosed a manifest abuse of discretion. Pelts v. Pelts, supra.

We have concluded from the evidence that the trial court could have found that plaintiff was granted a divorce from the defendant on April 26, 1957, and that as a part of that decree custody of the two minor children of the marriage was awarded to the plaintiff. Defendant was ordered to pay to plaintiff as child support and maintenance the sum of $10.00 per week per child--a total of $20.00 per week--and was allowed reasonable visitation rights with the boys. At the time of the divorce the children were 3 1/2 years and 28 months of age. That subsequently the parties could not agree what constituted 'reasonable rights of visitation' so that on December 3, 1965, the divorce decree of April 26, 1957, was modified by the court which had granted the decree specifying that the defendant was to have the two children visit with him on the first and third weeks of each month from 5 p.m. on Friday until 7 p.m. on Saturday and from December 27 to December 30 of each year, and from July 15 to August 1 of each year. That thereafter the defendant continued having difficulty exercising his rights of visitation with the children and on at least two occasions the boys fled from his custody. That between December 15, 1965 and January 25, 1966, the defendant received four letters from the children--two written by the elder child, one by the younger and one by both--wherein he was advised that they did not want to see him at any time, that they hated him, and that if he really wanted to see them happy he would not attempt to see them. In March, 1966, when defendant went to pick up the boys at plaintiff's home, plaintiff came out to defendant's car and informed defendant that the boys did not want to go with him; that she did not want him around her or the boys; that she didn't need his money; that she and her husband made $20,000.00 a year and that defendant was to 'keep my damn money and stay away from them and stay out of their life.' Defendant left without the children and had not seen them again until the date of the court hearing on December 19, 1972.

After the March, 1966, incident, the defendant continued making the payments for child support and maintenance in obedience to the divorce decree until sometime in May, 1966, when, on advice of counsel, he set up a 'trust fund' for the boys and paid the support payments into this account every two weeks. On February 25, 1967, defendant while in line of duty as a police officer of the St. Louis Police Department was critically wounded and was hospitalized for 280 days in that year. At no time during his hospitalization did the two boys visit him nor inquire about him. His first period of hospitalization was between February 25 and July 8, 1967.

While defendant was still hospitalized from his wounds, on May 17, 1967, Mr. Thomas J. Briegel, an attorney, wrote to Mr. Arthur Friedman, the defendant's counsel, enclosing 'Consent to Adoption' forms whereby the defendant would consent to the adoption of the two boys by plaintiff's husband, Thomas Busse, and asked Mr. Friedman to advise him of defendant's feelings in the matter, and if he agreed, to have him 'execute the enclosed Consents.' On June 13, 1967, Mr. Briegel again wrote to Mr. Friedman and stated that since he had not received a reply to his letter of May 17, 1967, he would appreciate it if Mr. Friedman would advise him if the defendant was willing to sign the forms. Upon receipt of this letter Mr. Friedman telephoned Mr. Briegel and advised him that he had not been able to confer with the defendant because of his hospitalization, but during this telephone conversation Mr. Friedman mentioned the possibility of the plaintiff releasing the defendant of all claims for past due as well as future child support for the two children in consideration of the defendant executing the consents. This was followed by a letter from Mr. Briegel to Mr. Friedman dated June 26, 1967, wherein Mr. Briegel enclosed an unexecuted copy of a Release which he stated he had mailed to Mr. and Mrs. Busse, and that, 'By way of information' it was his understanding that plaintiff intended to permit her children to be adopted by her husband, Mr. Busse, and in consideration of the consent of the defendant to the adoption, 'any and all child support payments which have accrued will be acknowledged as satisfied and Mrs. Busse will no longer look to Mr. Rodgers for any child support, court costs, attorney fees or any medical bills, etc. which may have accrued through the years.'

On July 8, 1967, the defendant executed the consent forms in Mr. Friedman's office and on July 17, 1967, Mr. Friedman wrote to Mr. Briegel advising him that he had met with the defendant who had agreed to the adoption of the boys by Mr. Busse and that he, Mr. Friedman, had in his possession signed consent forms which he was going to hold until he had received the release executed by the Busses. On September 25, 1967, Mr. Friedman wrote to Mr. Briegel inquiring what the current status of the case was, and on September 27, 1967, Mr. Briegel replied in a letter apologizing for the delay and advising him that 'I don't know what in the hell is going on. Mr. and Mrs. Busse have not signed the releases as yet and apparently are contemplating this. They expressed reluctance that I mail the release prior to my having the consents in my possession.' Mr. Briegel suggested that if the defendant was willing, Mr. Friedman could mail the executed consent forms to him so that when he had them in his hands the Busses might sign the releases, and that he would make it clear to all parties that should he have the consents in his possession they would not be released until he had the executed releases in his hands. Thereafter, on November 7, 1967, Mr. Friedman forwarded to Mr. Briegel the notarized copies of 'Consent to Adoption' forms executed by defendant on July 8, 1967, and requested that signed Release forms acknowledging full satisfaction of all child support claims to date be forwarded to him 'prior to your filing or makin public the enclosed Consent to Adoption forms.'

In the interim--the date is not established, but according to Mr. Briegel it was prior to the letter of November 7, 1967, from Mr. Friedman enclosing the executed consents, was received by him--the Busses came to Mr. Briegel's office and advised him that the proposed adoptions were going to be abandoned because the boys had said that they didn't want their names changed since they were already in school, had friends, and they would find it embarrassing to go up and say, 'Well, my name is Busse, now, instead of 'Rodgers. " Neither the Busses nor Mr. Briegel advised defendant nor Mr. Friedman of this change in plans, and even after Mr. Briegel had received the executed 'Consents to Adoption,' and, on or about the 10th day of November, 1967, had advised the Busses that he had them in his possession, was this information conveyed to either the defendant or Mr. Friedman.

The trust fund which the defendant had established for the boys after he...