State ex rel. Howell v. Howell

• Court: Missouri Court of Appeals
• Writing for the Court: PARRISH; PREWITT, P.J., and CROW
• Citation: State ex rel. Howell v. Howell, 818 S.W.2d 704 (Mo. App. 1991)
• Decision Date: 30 September 1991
• Docket Number: 17323,Nos. 17308,s. 17308
• Parties: STATE of Missouri, ex rel. Mary HOWELL, Appellant-Respondent, v. Gerald HOWELL, Respondent-Appellant.

Page 704

818 S.W.2d 704

STATE of Missouri, ex rel. Mary HOWELL, Appellant-Respondent, v. Gerald HOWELL, Respondent-Appellant.

Nos. 17308, 17323.

Missouri Court of Appeals,

Southern District,

Division One.

Sept. 30, 1991.

Motion for Rehearing or Transfer to

Supreme Court Denied Oct. 22, 1991.

Application to Transfer Denied Dec. 17, 1991.

Curtis G. Hanrahan, Dept. of Social Serv., Div. of Child Support Enforcement, Jefferson City, for appellant-respondent.

David P. Evans, West Plains, for respondent-appellant.

PARRISH, Judge.

Appeal number 17308 is an appeal from an order of the trial court that quashed an administrative order of the Division of Child Support Enforcement directing Gerald Howell to pay $240 per month child support and an additional $120 per month toward child support arrearages of $14,045. The trial court further quashed an administrative order for Gerald's employer to withhold sums from Gerald's salary to pay those amounts. The orders to quash are reversed. Appeal number 17323 is an appeal from a determination by the trial court that an administrative order directing Gerald to pay child support was not barred due to an asserted unenforceability of child support provisions in an Illinois decree of dissolution of marriage that dissolved the marriage of Gerald Howell and Mary Howell. That determination is affirmed.

Mary Howell and Gerald Howell were married January 24, 1967. That marriage was dissolved by the Circuit Court for the 19th Judicial Circuit in Lake County, Illinois, on November 10, 1982. The decree issued by the Illinois court ordered Gerald to pay child support to Mary in the amount of $400 per month, being $80 per month for each of five children. ¹ Gerald moved to Missouri from Illinois following the dissolution of that marriage.

Prior to his marriage to Mary, Gerald was married to Marguerite. A decree dissolving Gerald's and Marguerite's marriage was entered November 14, 1966, in the Circuit Court for the 19th Judicial Circuit in Lake County, Illinois. On September 15, 1967, after Gerald and Mary were married, the Illinois court entered an order that "vacated and held for naught" the November 14, 1966, decree. Thereafter, on September 19, 1967, the Illinois court entered a subsequent decree dissolving the marriage of Gerald and Marguerite.

Mary filed a petition with the Illinois court on July 20, 1984, seeking the collection of child support from Gerald. Her petition was filed pursuant to the Uniform Reciprocal Enforcement of Support Act (URESA). ² The responding court was the Circuit Court of Ozark County, Missouri. § 454.020(13), RSMo Supp.1984. The Circuit Court of Ozark County ordered Gerald to pay $100 per month beginning December 15, 1984.

On July 5, 1989, the Director of the Division of Child Support Enforcement (the director) issued an administrative order that directed Gerald to pay child support pursuant to the Illinois decree of dissolution of his and Mary's marriage. § 454.476, RSMo 1986. The order of the director was docketed in the office of the Circuit Clerk of Howell County, Missouri. An order was also directed to Gerald's employer requiring the employer to withhold and pay over to the Circuit Clerk of Howell County monthly sums from Gerald's pay. §§ 454.490 and .505, RSMo 1986.

Gerald filed a "Motion to Quash Execution and Garnishment" by which he sought to "quash the administrative garnishment" and to "dismiss any and all proceedings." The trial court ordered "that the administrative order herein be forever quashed to the extent that it seeks to collect any sums otherwise accruing under the ... decree of the Circuit Court of Lake County, Illinois, from October 1984 until the present time, or hereafter."

In its order quashing the execution in part, ³ the trial court included fourteen pages of narration in the nature of findings related to the points raised by the parties in support of the garnishment and in opposition to it. Both Mary and Gerald appealed. Their appeals are based upon three issues included in the findings of the trial court. The issues upon which they appeal are directed to determinations by the trial court (1) that the URESA order from the Circuit Court of Ozark County may have modified the Illinois support decree that is part of the decree that dissolved the marriage of Mary and Gerald; (2) that Mary acquiesced in a reduction of child support payments and, therefore, she could not now rely on the amount that the decree of dissolution ordered paid; and (3) that the Illinois decree could be enforced notwithstanding that the dissolution of Gerald's prior marriage to Marguerite was not final when he and Mary were married and, in fact, was set aside subsequent to Gerald's marriage to Mary. Mary contests issues (1) and (2) in her appeal, number 17308. Gerald contests issue (3) in his cross-appeal, number 17323.

This review is governed by Rule 73.01(c). "The judgment will be sustained unless there is not substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Sutton v. Schwartz, 808 S.W.2d 15, 17 (Mo.App.1991). In view of Gerald being the prevailing party before the trial court, the evidence and permissible inferences that may be drawn therefrom that are favorable to him are accepted as true. Id. Contradictory testimony is disregarded. Id.

The first issue presented is directed to a finding the trial court made in an interlocutory order it entered March 5, 1990, and included in the final order that is the subject of this appeal. The trial court found in its March 5, 1990, order "that the Illinois support order [that is part of the decree of dissolution of Mary's and Gerald's marriage] has been modified and superseded, and will not now authorize an execution for current support." (Emphasis by trial court.) And, in its final order, the trial court stated that it had considered, in its March 5, 1990, order, "Gerald's contention that the Illinois support decree was modified by a judgment of the Circuit Court of Ozark County, Missouri, on October 3, 1984, long prior to the entry of the administrative order herein." (Emphasis by trial court.) The final order then declares, "What was said there is ratified and confirmed to the extent not inconsistent herewith."

The trial court's statement that the Illinois decree was modified by the URESA judgment in the Circuit Court of Ozark County is erroneous. This question was addressed in Morton v. Morton, 798 S.W.2d 521, 522-23 (Mo.App.1990). What was said in Morton is apropos here.

The question presented is, does the granting of an amount of child support in a URESA action that is different from that ordered paid by a prior dissolution decree constitute a modification of the terms of the prior dissolution decree?

....

Two statutes speak to this issue, §§ 454.105 and .280 [RSMo 1986]. Section 454.105 states:

Participation in any proceeding under section 454.010 to 454.360 does not confer jurisdiction upon any court over any of the parties thereto in any other proceedings.

Section 454.280 states:

No order of support issued by a court of this state when acting as a responding state shall supersede any other order of support but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both.

Here, the trial court relied on In re Marriage of Stigall, 756 S.W.2d 184 (Mo.App.1988), to support its determination that the URESA action resulted in modification of the Illinois dissolution decree. Stigall is discussed at length in Morton v. Morton, supra, at 523-24. For the same reasons given in Morton, Stigall is not applicable to the facts of this case. ⁴ The Illinois decree was not modified by the Ozark County Circuit Court URESA judgment.

The second issue presented is directed to a determination by the trial court that Mary acquiesced in a reduction of child support and that she could not now rely on the amount stated in the Illinois decree. Mary contends that the trial court erred in so finding.

The trial court recited a variety of circumstances in determining that Mary acquiesced in Gerald's paying less child support than was ordered by the Illinois decree. Those recitations include: (1) after a URESA order was entered for less than the amount of support ordered by the Illinois decree, Mary did not "ask that the Ozark County judgment be vacated, nor for new trial, nor did she take an appeal"; (2) Mary "sought enforcement of the [URESA] judgment by filing a Motion for Contempt" (emphasis by trial court); and (3) Mary "received and accepted all sums paid in satisfaction of the Ozark County judgment and did nothing inconsistent with the theory that it constituted a modification of the Illinois decree until she filed a second URESA action in Howell County in 1988." ⁵

The trial court ultimately concluded:

In determining whether Mary's conduct in failing to pursue the Illinois support order for a period of nearly four years admits of another "reasonable explanation" besides waiver, the Court is necessarily required to speculate. Mary has given no evidence before this Court, nor has any attorney on her behalf offered argument explaining her long silence following the Ozark County proceeding. It would certainly seem that if Mary needed the additional support, disagreed with the finding that Gerald could afford no more than $100 per month, and believed the Illinois order was still vital[?], she would have taken some action between October 1984 and April 1988 besides seeking enforcement of the Ozark County judgment. She remained free to register the Illinois judgment in Missouri. She remained free to pursue administrative remedies. Most logically, she could have asked the...