Sagos v. Sagos

• Decision Date: 12 May 1987
• Docket Number: No. 51602,51602
• Citation: 729 S.W.2d 76
• Parties: Beckey A. SAGOS, n/k/a Mitts, Respondent, v. James Larry SAGOS, Appellant.
• Court: Missouri Court of Appeals

Page 76

729 S.W.2d 76

Beckey A. SAGOS, n/k/a Mitts, Respondent, v. James Larry SAGOS, Appellant.

No. 51602.

Missouri Court of Appeals,

Eastern District,

Division One.

May 12, 1987.

Gregory M. Sheehan, New Haven, for appellant.

Robert C. Babione, St. Louis, for respondent.

KELLY, Judge.

This appeal follows the decision of the trial court granting judgment for respondent Beckey A. Sagos n/k/a Mitts on her petition for writs of scire facias and revival of judgment against appellant James Larry Sagos for child support not paid to respondent between October, 1975 through September, 1985, and also sustaining respondent's motion to dismiss appellant's motions and defenses in opposition thereto. ¹

Appellant contends that the trial court erred in dismissing his motion to quash and his answer raising the defense of waiver by acquiescence, and in granting respondent's petition for revival of judgment.

We find that the trial court did not err; therefore, we affirm.

Appellant's uncontroverted testimony was that on October 19, 1973, respondent and he were divorced pursuant to a decree of dissolution entered by the Circuit Court of St. Charles County. The decree required appellant to make child support payments of $15.00 per week for each of their three minor children. Before these payments began, appellant relocated from Missouri to Michigan to help his parents operate a small appliance repair shop. In keeping with his obligation of support, appellant began making child support payments pursuant to Michigan's Uniform Reciprocal Enforcement of Support Act (URESA). The URESA order allowed appellant to make reduced child support payments totalling $100.00 per month. The record shows that in 1974 appellant made the required monthly payments pursuant to the URESA order from January, 1974, until May, 1974. The payments were then interrupted during the summer of 1974 when appellant had physical custody over the three children.

Appellant returned the children to respondent at the end of the summer. Appellant then relocated to Kansas City, Missouri, and resumed making the child support payments through the state of Michigan until January, 1975.

In January, 1975, respondent telephoned appellant stating that, because of emotional difficulties, she wanted to transfer custody of the children to him. Appellant agreed so long as he had something from the court permitting the transfer of custody and releasing him from child support obligations. Appellant testified respondent said she would take care of everything regarding an official document.

Apparently respondent then contacted the office of the attorney who represented her at the dissolution proceeding in 1973. The attorney testified at this trial that, although he did not recall a conversation with respondent in 1975, his files contained the original copies of a letter directed to appellant, a memorandum for his entry of appearance on behalf of respondent and a motion to modify custody. These documents all lacked the address of appellant. The attorney speculated that the original documents had remained in his file because no one ever supplied him with the address of appellant.

Nevertheless, when appellant picked up the children to assume custody in 1975, respondent gave him a document agreeing to the change of custody. This document purported to transfer permanent custody of the children to appellant and to release him from support obligations. Appellant believed the document was legally authentic because respondent told him it had been filed at the courthouse, and because the document had been signed by respondent and duly notarized. From this point forward, appellant made no further child support payments.

Appellant took the children to his Kansas City home. Once in Kansas City, appellant signed a copy of the document respondent had given him and mailed it to Michigan to terminate the Michigan URESA order. The Michigan authorities accepted the document and subsequently entered an order terminating Michigan's jurisdiction to enforce appellant's child support obligation.

The children's stay in Kansas City did not last long. Toward the end of May, 1975, appellant and his children moved back to St. Louis because of the children's desire to be closer to respondent. Respondent's mother assisted appellant in obtaining employment at a restaurant. Throughout this period the children resided with appellant.

During the later part of the summer of 1975, appellant learned his mother was ill in California. Appellant arranged for respondent to care for the children while he was away.

After a two to four week visit in California, appellant returned to St. Louis (in the fall of 1975) with hopes of relocating his family to California. However, during appellant's visit to California, respondent had moved from her St. Charles home, taking the children with her. Appellant contacted respondent's mother and sister but neither knew where respondent and the children were. Appellant made further inquiries through the local police and an attorney, all to no avail.

When appellant felt there was nothing more he could do to find the children, he left Missouri and returned to California. Before leaving Missouri, appellant gave his telephone number and address to several of respondent's relatives with instructions to contact him if they should learn of respondent's whereabouts.

For reasons unimportant here, appellant left California and moved back to the St. Louis area. Although the record is not clear regarding the exact date of this move, we know it occurred sometime between 1976 and 1984. During this period appellant remarried and had a child through this marriage. Appellant's present household also includes two minor children from his second wife's previous marriage.

Appellant heard nothing regarding respondent or their children until March, 1984, when he was served in a support action initiated in Texas with new URESA papers. The action in Texas was subsequently dismissed because respondent had returned with the children to Missouri. Respondent then commenced this present action in St. Charles County.

Following service of the Texas URESA papers, but subsequent to this proceeding, two of the parties' children initiated a visit with appellant. This was the first and only visit appellant had with his children since 1975. The children arranged to have a friend of their mother's drop them off at appellant's home and then pick them up approximately three or four hours later. Since this single visit, appellant's only communication with the children has been by telephone calls and written correspondence.

Appellant maintains as his defense to the writ of scire facias and revival of judgment that all past due child support payments have been waived by respondent's acquiescence. Appellant contends that the decision of the trial court should be reversed, with judgment entered in favor of appellant on his motion to quash the execution, or that the decision be reversed and remanded with direction to the trial court to grant appellant a new trial. We disagree.

Past due child support payments that are owed by a divorced father to the divorced wife pursuant to a court order for support payments and incorporated into the divorce decree constitute a debt so that accrued and unpaid installments become judgments in favor of the former wife. Barbara v. Charles, 632 S.W.2d 92, 93 (Mo.App.1982); Penney v. White, 594 S.W.2d 632, 635[1-6] (Mo.App.1980). Any past due amounts may be settled or compromised between the parties if there is evidence that such an agreement is supported by adequate consideration. Kennedy v. Kennedy, 575 S.W.2d 833, 835[3-4] (Mo.App.1978); Rodgers v. Rodgers, 505 S.W.2d 138, 144[3-6] (Mo.App.1974). This court has consistently held, however, that a custodial parent who is entitled to child support payments may waive by acquiescence the right to enforce such payments as they become due and owing. Grommet v. Grommet, 714 S.W.2d 747, 749 (Mo.App.1986); Dablemont v. McMinn, 691 S.W.2d 490, 491 (Mo.App.1985); Buttrey v. Buttrey, 622 S.W.2d 708, 709[1, 2] (Mo.App.1981); Rodgers v. Rodgers, 505 S.W.2d at 145[9, 10]. Acceptance of an amount less than owed or delay in demanding child support payments does not, by itself, rise to the level of waiver by acquiescence. Vincent v. Vincent, 584 S.W.2d 152, 153 (Mo.App.1979); Hart v. Hart, 539 S.W.2d 679, 682 (Mo.App.1976).

Waiver by acquiescence was recently reviewed by this court in Grommet. Although somewhat distinguishable on its facts, Grommet explored the background and development of the defense of waiver by...