Sutton v. Schwartz

• Decision Date: 30 April 1991
• Docket Number: No. 57619,57619
• Parties: Bonnie Jo (Schwartz) SUTTON, Plaintiff-Appellant, v. Francis W. SCHWARTZ, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 15

808 S.W.2d 15

Bonnie Jo (Schwartz) SUTTON, Plaintiff-Appellant, v. Francis W. SCHWARTZ, Defendant-Respondent.

No. 57619.

Missouri Court of Appeals,

Eastern District,

Northern Division.

April 30, 1991.

Russell John Kruse, Palmyra, for plaintiff-appellant.

James Daniel Terrell, Hannibal, for defendant-respondent.

SATZ, Judge.

This is a garnishment action. Ms. Bonnie Jo Sutton (mother) seeks to collect from Mr. Francis W. Schwartz (father) alleged arrearages in child support the father was ordered to pay in a dissolution decree entered in 1973. The mother also seeks attorney's fees.

The trial court heard and granted the father's motion to quash the garnishment. It denied the mother's request for attorney's fees. The mother appeals.

Our review is governed by Rule 73.01(c) and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). 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. Id. We accept as true the evidence and permissible inferences which may be drawn favorable to the father, as the prevailing party below, and disregard contradictory testimony. Snowden v. Gaynor, 710 S.W.2d 481, 483 (Mo.App.1986).

Viewing the record in this light, most of the mother's points on appeal have no merit. However, the record does show the father may owe unpaid child support. We, therefore, reverse the trial court's order quashing the garnishment and remand this cause to the trial court to determine, on the present record, the amount of unpaid child support, if any, the father owes, to determine whether the mother is entitled to attorney's fees for a successful prosecution of the garnishment, and to enter an appropriate judgment.

Mother's Request for Findings of Fact and Conclusions of Law

The trial court denied the mother's request for Findings of Fact and Conclusions of Law because it found her request to be untimely. To us, the record does not clearly show the mother's request was untimely. But, the lack of specific findings, for the most part, does not hinder us in reviewing the mother's appeal. The record discloses the issues of fact which were before the trial court, and the record, particularly the trial court's letters to counsel after the hearing, also shows what most of the trial court's findings of fact would be. Although the findings in the letters were not made in direct response to the mother's request, they are part of the record now before us, and we may consider them to determine whether the lack of formal findings prejudiced the mother. See Weiss v. Weiss, 702 S.W.2d 948, 951 (Mo.App.1986). Moreover, to the extent we are able to, we will set to rest most of the issues now before us in this ongoing battle of 18 years. See, e.g. Gardner, Inc. v. Beanland, 611 S.W.2d 317, 321 (Mo.App.1980).

Procedural History

The marriage of the parties was dissolved in 1973. The mother was awarded custody of the parties' three children: Lisa, born, 1960; Sheryl, born 1965; and Greg, born 1968. The father was ordered to pay a lump sum of $175 per month as support for the children, and to pay the mother maintenance of $5,000 in 10 annual payments of $500.

In January, 1986, the mother filed a garnishment against the father's bank account, alleging a child support arrearage of $3,705. The garnishment was quashed when the mother failed to appear at a hearing. This order to quash, apparently, was never vacated.

In July, 1986, the mother filed a second garnishment, alleging a child support arrearage of $4,505. The father did not contest this garnishment, and the mother recovered about $300 from the father's wages.

In November, 1988, the probate division of the court ordered $8,000 to be paid to the father as a partial distribution of an estate. The mother filed a general execution against this distribution, alleging a child support arrearage of about $16,240 in support and $6,900 in interest. The father filed the motion to quash in issue here. It was heard in January, 1989.

In February, 1989, the mother filed a motion for attorney's fees; in March, she filed a request for Findings of Fact and Conclusions of Law; and, in April, she filed a copy of her computation of arrearages as of April 1, 1989, showing arrearages of $11,803.31 support and $6,425.18 interest. The father formally objected to the mother's request for findings and conclusions as untimely.

In a letter to counsel in June, 1989, the trial court made "preliminary findings of fact". The court requested counsel to review the "findings" for error and, based on the "findings", to determine whether arrearages existed. The record before us does not contain any response from counsel.

Then, by a letter in July, 1989, the trial court modified and clarified its earlier preliminary findings. The court also informed counsel it would make no formal Findings of Fact or Conclusions of Law because it found the mother's request for the same to be untimely. The court also requested counsel to submit numerical calculations of the amount of support paid and alleged to be owed. There was no direct response to this request.

On November 20, 1989, the court ordered the garnishment quashed and ordered each party to pay his or her own attorney fees. The mother's appeal followed.

Mother's "Waiver"

In March 1979, the oldest daughter, Lisa, moved from the mother's home. The trial court found that, at that time, the parties "agreed" to reduce the amount of child support payments from the decreed $175 per month to $120 per month. The court also found the mother "waived the decretal amount of support by agreeing to and acquiescing in the payment of a lesser sum without seeking any legal remedy for a period of seven years."

Basically, the mother contends the trial court erred in finding a "waiver" because this finding is based upon a non-existent agreement to reduce support. She attacks the existence of the agreement on three interrelated grounds. She contends 1) there was insufficient evidence to show the agreement was made; 2) there was no showing of consideration from the father to the mother in exchange for the alleged agreement, without which no agreement existed and, in turn, no "waiver" could occur; and 3) such an "out-of-court" agreement to alter support payments ordered by the court is unenforceable, and, therefore, cannot support a finding of "waiver". These arguments are misdirected and, thus, miss the mark.

The mother correctly argues that an out-of-court agreement to change prospectively the amount of support due under a dissolution decree is not enforceable. E.g., Foster v. Foster, 703 S.W.2d 952, 954 (Mo.App.1986). Parties wishing to make such an agreement enforceable must petition the court to change the terms of the decree. Id. Past due payments of support, on the other hand, constitute a debt which the obligee can compromise by an agreement supported by adequate consideration. Id.

There are circumstances, however, where a court may refuse to award the obligee the full amount of support allegedly due even in the absence of a court-ordered modification or an agreement to compromise past due amounts. Grommet v. Grommet, 714 S.W.2d 747, 749-51 (Mo.App.1986). This refusal may occur when it would be unjust to permit the obligee to collect the full amount due. Id. The refusal is based upon a concept labelled "waiver by acquiescence," which is actually an application of the doctrine of equitable estoppel. Id. at 750.

To explain the real meaning of this concept, this Court in Grommet analyzed those cases in which a "waiver" was found and pointedly noted that, in those cases, there existed facts showing more than a mere express or implied agreement to accept reduced payments or a mere delay in demanding full payment. Id. at 751. The Court said:

[T]he defense denominated as waiver by acquiescence does not arise in the absence of some fact or circumstance which warrants the invocation of equitable considerations in order to avoid injustice.... The concept called waiver by acquiescence is an equitable doctrine. We look, therefore, for some indicia of injustice such as a change in respondent's position induced by a misconception of the appellant's intent or the status of his court decreed obligation....

Id. at 751.

Thus, Grommet does not teach an out-of-court agreement to reduce child support prospectively is enforceable if supported by consideration, nor, conversely, does it teach that such an agreement is not enforceable unless supported by consideration. But, it does teach that it may be an injustice to permit an obligee to collect the full amount of child support due under a decree if the obligor changed position, to his or her prejudice, in reliance on a perceived agreement with the obligee. There was sufficient evidence in the present case for the court to have reached that conclusion.

The father could have reasonably perceived that he had reached an agreement with the mother to lower the child support payments. The father testified he made child support payments of $175 or $180 per month regularly from the date of the dissolution decree until March 1979. The oldest daughter left the mother's home and moved to Arizona at about that time. The father testified the mother then "agreed" to accept $120 per month, which she did, he said, without complaint. The court's records show the father paid $120 to the circuit clerk each month for almost five years, from March, 1979 through December, 1983. The father was not cross-examined about this agreement.

Admittedly, the mother denied any agreement to reduce the amount of support and testified she complained to him about the reduced support payments. The court, however, was not required to believe her. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). Moreover, from the record it appears that she took no steps to recover the full amount due until she...