Schaffer v. Security Fire Door Co.

• Decision Date: 21 July 1959
• Docket Number: No. 29982,29982
• Citation: 326 S.W.2d 376
• Parties: Dorothy SCHAFFER (now Dorothy Barbier) (Plaintiff), Respondent, v. SECURITY FIRE DOOR COMPANY, a corporation, Garnishee of Lloyd C. Schaffer (Defendant), Lloyd C. Schaffer (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 376

326 S.W.2d 376

Dorothy SCHAFFER (now Dorothy Barbier) (Plaintiff), Respondent, v. SECURITY FIRE DOOR COMPANY, a corporation, Garnishee of Lloyd C. Schaffer (Defendant), Lloyd C. Schaffer (Defendant), Appellant.

No. 29982.

St. Louis Court of Appeals, Missouri.

July 21, 1959.

Cecil Block, St. Louis, for appellant.

Charles E. Wells, St. Louis, for respondent.

RUDDY, Judge.

The trial court overruled defendant's motion to quash an execution and to recall a garnishment and he appeals. We shall refer to the respondent (wife) as plaintiff and to the appellant (husband) as defendant.

The record in this case is somewhat incomplete. While we think the record is insufficient to support several of the contentions relied on by the defendant, we do think that sufficient facts may be pieced out of the record to enable us to review the principal point relied on by him.

Plaintiff was granted a decree of divorce from the defendant on February 3, 1943, and was given custody of the two minor children born of the marriage. She was granted an award of $8 per week for the support of the two children. On June 7, 1954, the decree was modified to provide that defendant pay the plaintiff the sum of $15 per week for the support of each child. The two minor children were Gene Warren Schaffer, born August 19, 1937, and Vivian Jane Schaffer, born September 24, 1940.

The evidence offered by the defendant in support of his Motion to Quash the Execution showed that Gene Warren Schaffer, the son of the parties, entered the United States Army in October 1954. The evidence further showed that the boy left the service of the United States Army in August or September, 1955. Plaintiff in her brief states that the boy entered the United States Army September 30, 1954, and continued in military service until September 8, 1955. Defendant testified that he faithfully and fully complied with the terms of the decree with respect to the allowances for the children's support until December 1954. At that time he stopped paying the $15 per week for the support of the boy when he heard that he was in the Army. He continued to pay $15 per week for the support of the girl, but has paid nothing since December 1954 toward the support of the boy. None of the issues presented on this appeal concerns the girl's allowance.

Defendant in the statement of facts contained in his brief states that 'The evidence upon the hearing of the Motion to Quash the Execution and recall the garnishment, showed that Gene Warren Schaffer was employed and probably married at the date of the hearing on the Motion and was also living apart from respondent (plaintiff).' The record in this connection is insufficient to support that statement. The defendant testified that he believed the boy had married after he left military service. However, he was not sure and 'never did verify that fact.' He did not know where the boy was working and knew none of the circumstances in connection with the alleged employment of the boy. There is nothing in the record to uphold the statement of the defendant that the boy was living apart from the plaintiff when he was discharged from the Army. The only statement touching on this matter, made by the defendant, is that the boy 'was staying on Kingshighway and Delmar.' There is nothing in the record to show that this was not the abode of the plaintiff.

In view of the position we have taken in this appeal, disclosed by a further reading of this opinion, these matters, even though proved sufficiently, would be of no help to defendant, inasmuch as he failed to file a timely motion to modify the decree as modified, which motion, if filed, could have been based on the grounds he now asserts in support of his motion to quash the execution and recall the garnishment.

In aid of the execution plaintiff instituted a garnishment proceeding against the Security Fire Door Company, a corporation, employer of defendant.

Pursuant to the authority given under Supreme Court Rule 1.03 we requested the Clerk of the Circuit Court for the Eighth Judicial Circuit to send us a certified copy of the Decree of Divorce granted February 3, 1943, and a certified copy of the plaintiff's 'Affidavit for Execution.' It is alleged by plaintiff in the last named document that defendant as of July 2, 1957, was indebted to plaintiff in the sum of $1,903 on account of the judgment for the support of the boy. This sum includes support for the period when the boy was in the United States Army.

Defendant in his 'Motion to Quash Execution and Recall Garnishment' states 'that he is not indebted to the plaintiff in any sum whatever, having fully complied with the terms of the judgment * * *.' In this court defendant pursues this same contention. In support of his point defendant asserts that the minor child involved became emancipated when he entered the military service of the United States Army; therefore, he is not required to pay to his former wife the support and maintenance installments that accrued while the boy was a member of the Armed Forces. He further asserts that the boy having been emancipated for the aforesaid reason, the father's duty to support the child is completely extinguished, relying on the case of Swenson v. Swenson, Mo.App., 227 S.W.2d 103, 20 A.L.R.2d 1409, decided by the Kansas City Court of Appeals.

The plaintiff in her brief, when discussing the Swenson case relied on by the defendant, said: 'The Court held and fixed the rule of law that 'When a minor enlists in the military service of this country, he ceases to be a part of his father's family, and puts himself under the control of the government, and is consequently emancipated so long as this service continues.'' Because of the holding in the Swenson case plaintiff in her brief said: 'It is conceded by the respondent (plaintiff) that the appellant (defendant) is not liable for support of the minor child during the time he was in the army * * *.' However, plaintiff contends that defendant is liable for the support money due after the son terminated his military service.

We cannot agree with that part of the holding in the Swenson case which had the effect of modifying retroactively accrued installments of child support. For this reason we feel we should not accept the concession made by the plaintiff in her brief. If we accepted her concession, we would be holding that a court has jurisdiction to modify retroactively accrued installments of child support. We do not believe such jurisdiction exists.

In the Swenson case the minor son was inducted into the United States Army on June 25, 1945, having previously enlisted with the written consent of his mother. He remained in the Army during the balance of his minority. The mother admitted she did nothing towards supporting the son while he was in the Army, other than to send him small gifts. The boy attained his majority on April 10, 1948, and was discharged from the Army on September 20, 1948. Under the decree of divorce the father of the boy was ordered to pay the mother $100 per month for the support and maintenance of said minor son. The father made all of the payments required by said divorce decree up to and including the month of June 1945.

Three days before the minor son attained his majority the mother, through an attorney, made a demand on the father for payment of the accrued installments due from June 1, 1945. On May 15, 1948, the mother caused an execution to be issued against her former husband. The husband filed a motion to quash the execution and among other grounds set forth in said motion he alleged that the minor child became emancipated when he enlisted in the Army with the consent of the mother. On his appeal from the order of the trial court overruling his motion to quash, the husband contended 'that his motion to quash the execution should have been sustained because plaintiff (the wife) admits that she consented to her son's enlistment and induction into the United States Army, and that he, thus, became emancipated on June 25, 1945, and that, thereafter, she did not have the care, custody and control of the son and was, therefore, not entitled to be paid for his support.' (227 S.W.2d loc. cit. 105).

Opposed to this is the contention of the wife that the decree of divorce was final and in full force and effect until the child reached his majority, or, until modified by proper procedure, and the court had no jurisdiction to modify it retroactively.

The court in the Swenson case (loc. cit. 105) pointed out that the wife relied on the case of Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066. In commenting on that case the court said:

'That leading case held that remarriage by a divorced wife does not ipso facto dissolve the obligation of her former husband to pay alimony, but the judgment, therefore, stands in full force until modified by the court pronouncing it. The reason underlying the court's holding in that case is that the court found the general rule to be that remarriage had no direct effect upon the judgment for alimony. This being so, it merely affords a basis upon which the court, upon application of the former husband, may modify or annul it. The court held that the term 'alimony' in its true sense represents 'the allowance of such a sum of money in gross or in installments as will fairly and reasonably compensate her (the divorced wife) for the loss of her support by the annulment of the marriage contract. * * * It may be deemed an assessment of damages in her favor for breach of the contract by the husband.''

The court in the Swenson case went on to say that the holding in the Nelson case did not govern the case before it, because a different situation was present. The court then said: 'When a minor enlists in the Military Service of the Nation, it gives rise to a new relation inconsistent with the control and care of the parent.' (Citing cases.) (loc. cit. 105.) After analyzing some cases as to when...