Starrett v. Starrett

• Decision Date: 02 May 2000
• Citation: 24 S.W.3d 211
• Parties: (Mo.App. E.D. 2000) . Lamar Starrett, Petitioner/Appellant, v. Malba Starrett, Respondent/Respondent. Case Number: ED76069 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

24 S.W.3d 211 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Lamar Starrett, Petitioner/Appellant, v. Malba Starrett, Respondent/Respondent.

Case Number: ED76069

Missouri Court of Appeals Eastern District

Handdown Date: 05/02/2000

Appeal From: Circuit Court of St. Louis County, Hon. Thea A. Sherry

Counsel for Appellant: Harold G. Johnson and Mitchell D. Johnson

Counsel for Respondent: Simone A. Haberstock

Opinion Summary: Husband Lamar Starrett appeals the judgment granting wife Malba Starrett's motion to enforce a property distribution provision of a judgment of dissolution.

REVERSED.

Division One holds: The trial court erred in: (1) granting wife's motion to enforce the judgment of 1986 more than ten years after the judgment was rendered, because such judgment was never revived and, thus, presumed paid pursuant to 516.350.1 RSMo 1994; and (2) in awarding attorney fees to wife.

Opinion Author: Paul J. Simon, Judge

Opinion Vote: JUDGMENT REVERSED. Gaertner, P.J., concurs. J. Dowd, J., concurs in separate opinion filed.

Opinion:

Lamar Starrett, husband, appeals the judgment of the Circuit Court of St. Louis County granting Malba Starrett's, wife, motion to enforce a property distribution provision of a judgment of dissolution.

On appeal, husband contends that the trial court erred in: (1) sustaining wife's motion to dismiss husband's motions to modify and to dismiss wife's motion, because the dissolution decree providing that wife was to receive one-half of husband's military pension as distribution of marital property was no longer enforceable, pursuant to 516.350.1 RSMo 1994 (all further references herein shall be to RSMo 1994 unless otherwise indicated); (2) entering a Qualified Domestic Relations Order (QDRO) for wife because the controlling federal law at the time of the legal separation prevented such assignment and such is res judicata; (3) the trial court erred in awarding wife attorney fees because the trial court denied wife's motion for contempt and further wife provided no evidence of her inability to pay her fees or husband's income and ability to contribute. We reverse.

The record reveals that in August 1984, the trial court entered a Decree of Legal Separation awarding wife one half of husband's military retirement pay benefits as periodic maintenance and ordering husband to retain wife under the "survivor benefit plan." Wife appealed the decree and this court subsequently modified it so that one half of husband's retirement benefits were distributed to wife as marital property in lieu of periodic maintenance. Starrett v. Starrett, 703 S.W.2d 544 (Mo. App. E.D. 1985). The Decree of Legal Separation was subsequently converted to a Decree of Dissolution in 1986.

In 1997, wife filed a motion for contempt, which was amended in September, 1998 to a motion for contempt and to enforce the 1986 Decree of Dissolution. Husband filed an answer requesting the court to dismiss wife's motion on the basis that her action was barred because it was not timely filed. He also filed a Motion to Modify, requesting that the trial court modify the decree by terminating the payment of retirement benefits to wife.

At trial, the parties stipulated to the following facts: (1) subsequent to the mandate of the court of appeals in 1986, the parties completed and submitted the appropriate forms to the military to assign one half of benefits to wife and designating her as survivor for the survivor benefit plan; (2) the military confirmed receipt of those documents; (3) since submission of the documents, wife has received benefits every month since 1986; (4) in September 1998, the military confirmed that wife was no longer the survivor beneficiary; (5) husband's new spouse is the current survivor beneficiary.

The trial court granted wife's motion to enforce the 1986 Decree of Dissolution, ordered husband to reinstate wife as survivor beneficiary and entered a QDRO in order to ensure that wife continues to receive her benefits and is designated survivor beneficiary. The trial court further denied wife's motion for contempt, and awarded her attorney fees of $2000.00.

In his first point, husband contends that the trial court erred in granting wife's motion to enforce and denying his motions to dismiss and to modify because the 1986 judgment was no longer enforceable as it had not been revived prior to the expiration of the ten year limitation set forth in section 516.350.1, which provides, in pertinent part,

1. Every judgment, order or decree . . except for any judgment, order, or decree awarding child support or maintenance which mandates the making of payments over a period of time, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof . . . or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years . . . such judgment shall be conclusively presumed to be paid, and no execution, order or process shall...