Swan v. Shelton, 33963

• Decision Date: 27 July 1971
• Docket Number: No. 33963,33963
• Citation: 469 S.W.2d 943
• Parties: Sue SWAN, formerly Sue Shelton, Plaintiff-Appellant, v. Donald SHELTON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 943

469 S.W.2d 943

Sue SWAN, formerly Sue Shelton, Plaintiff-Appellant, v. Donald SHELTON, Defendant-Respondent.

No. 33963.

St. Louis Court of Appeals, Missouri.

July 27, 1971.

John T. Sluggett, III, Clayton, for plaintiff-appellant.

Pannell, Dodson & Robinson, Festus, for defendant-respondent.

DOERNER, Commissioner.

On February 25, 1970 plaintiff filed in the Circuit Court of Jefferson County, Missouri, her verified petition for the registration and confirmation of an Illinois judgment and decree in accordance with our Uniform Reciprocal Enforcement of Support Law, §§ 454.010 to 454.360, inclusive, RSMo 1969, V.A.M.S., and Civil Rule 74.79, V.A.M.R. By an order entered on February 26, 1970, the court found the judgment to be in proper form, ordered it registered in the sum of $2,330.00, the amount plaintiff claimed was due her, and directed that a summons to the defendant be issued. Defendant filed a motion to quash the registration on the grounds that the enforcement of plaintiff's Illinois judgment and decree was barred by § 516.350, and in the alternative an answer pleading the payment of all sums plaintiff was entitled to receive. The court sustained defendant's motion to quash the registration, and after unavailing post-hearing motions plaintiff's appeal followed.

In her verified petition plaintiff alleged that she was then a resident of Illinois, and defendant of Jefferson County, Missouri; that on August 2, 1957, an Illinois court of general jurisdiction had granted her a divorce from defendant, awarded her custody of the parties' minor child, Dennis, and ordered defendant to pay plaintiff the sum of $10.00 per week for the support of Dennis; that on February 9, 1962, the Illinois court had entered an order transferring custody of Dennis to defendant and terminating defendant's obligaion to pay child support; that thereafter, on March 17, 1969, the Illinois court had entered an order further modifying its amended decree so as to grant plaintiff certain rights of visitation and temporary custody; that Dennis then resided with defendant, '* * * and that the defendant has refused and steadfastly refuses to pay plaintiff any sum or sums due and owing her from the original decree * * *.' Plaintiff's prayer was that the original decree, amended as stated by the Illinois court's orders of February 9, 1962, and March 17, 1969, be registered in Missouri, that the court determine and adjudge that the defendant owes plaintiff as and for child support whatever amount is established by the evidence, for execution thereon, and for other relief.

Filed with plaintiff's petition were authenticated copies of the Illinois judgment and decree of August 2, 1957, and of the

order of March 17, 1969. Also filed with plaintiff's petition, although not referred to therein, was the following paper as it appears in the transcript before us:

'VINCENT P. KUEBEL

(Filed Dec. 11, 1969)

'Clerk of the Circuit Court

Theresa Childs, Chief Deputy

St. Clair County

Belleville, Illinois 62220

December 4, 1969

'TO WHOM IT MAY CONCERN:

'Re: Sue Swan, formerly Sue Shelton Plaintiff-Petitioner vs. Donald Shelton--Defendant-Respondent FA No. 57--288--File No. 26142

'This is to advise that this Court has no record of any child support payments being made to this Office on the above captioned case.

'Yours very truly,

s/ Vincent P. Kuebel

CIRCUIT CLERK

By s/ C. Shea

Deputy'

On February 25, 1970, the same day on which plaintiff filed her verified petition, plaintiff also filed her affidavit herein in which she stated, '* * * that the sum of Two Thousand Three Hundred Thirty Dollars ($2,330.00) has accrued and is in arrears on an original judgment and amendments thereto to date.'

Section 516.350, cited in defendant's motion to quash, provides:

'Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such vs. Donald Shelton--Defendant-Respondent made on such judgment, orde 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 from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.'

The legislative background of that Section (then Section 1038, RSMo 1939), was related in Northwestern Brewers Supply Co. v. Vorhees, 356 Mo. 699, 203 S.W.2d 422, 424--425 as follows:

'Under the common law forbearance for 20 years unexplained, unaccounted for and unrebutted would extinguish the right of action on a judgment absent any statute. Our early statute created a presumption of payment after 20 years but such presumption was rebuttable by proof of partial payment or written acknowledgment. This statutory presumption was said to be a rule of evidence and not a limitation in Chiles v. School District of Buckner, 103 Mo.App. 240, 77 S.W. 82. Such a statute as our former one has been held not to be, strictly speaking, a statute of limitations fixing the time after which an action may not be maintained upon a judgment, but a statute creating a presumption of satisfaction as at common law. Under such a statute, if the evidence rebutted the presumption of payment, recovery could be had on a judgment even after the expiration of the 20 year term. The distinction between the statutory presumption of payment and a statute of limitation was discussed in Cape Girardeau County v. Harbison, 58 Mo. 90.

'However in 1895 the former statute creating a presumption of payment was repealed and a new one enacted in somewhat the present form. Laws 1895, p. 221. Except in cases of revivor or partial payment entered upon the record a judgment was conclusively presumed to be paid. A further provision was added, namely: 'no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.' It thus appears the statute joined a conclusive presumption of payment with a limitation on the right to maintain any action and became in effect a statute of limitation. Under such circumstances even an admission the judgment was not paid, if there was one, would not destroy the conclusive presumption and, furthermore, would not remove the bar of the limitation. In Hedges v. McKittrick, Mo.App., 153 S.W.2d 790 it was held that nothing is allowed to interrupt the running of Section 1038 against a judgment save some exception found in the section itself.'

And in the fairly recent case of Sisco v. Sisco, Mo.App., 339 S.W.2d 283, 288, this court held that by Section 516.350 both a judgment for alimony and one for the support and maintenance of the minor '* * * became satisfied and paid at the expiration of ten years from their entry, absent payment to toll the statute or statutory revival.'

At the time plaintiff filed her verified petition for the registration of the Illinois judgment on February 25, 1970, more than ten years had elapsed since the entry of that judgment on August 2, 1957. The allegation in plaintiff's petition and exhibits thereto that defendant had not paid anything on the judgment did not destroy or rebut the conclusive presumption of payment created by the statute. As the Supreme Court said in Northwestern Brewers Supply Co. v. Vorhees, supra, 203 S.W.2d l.c. p. 425, '* * * Under such circumstances even an admission (by the defendant) the judgment was not paid, if there was one, would not destroy the conclusive presumption and, furthermore, would not remove the bar of the limitation. * * *' With the record in the foregoing state at the time the defendant's motion to quash the registration was presented it is apparent that the trial court's action in sustaining the motion on May 25, 1970, was clearly proper.

Plaintiff then filed what she titled 'Plaintiff's Motion to Set Aside Order Quashing Plaintiff's Application for Registration of Foreign Judgment or in the Al-Alternative for a New Trial,' in which she alleged: (1) that the court had erred in assuming '* * * that the original judgment had been barred by limitations, in accordance with R.S.Mo.1959, Section 516.350'; (2) that the court erred in not finding '* * * that the original decree of August 2, 1957, had been revived and revitalized by subsequent modifications, and was not in fact barred by limitations as aforesaid'; and (3) that the court erred in not granting plaintiff permission to introduce evidence and show that payments had been made within the last ten years and that in fact payments had been made within the last ten years as plaintiff '* * * begs the Court for leave to establish same.' Regarding the last ground we observe, parenthetically, that the transcript does not indicate that the plaintiff, at any time, sought to introduce evidence which the court refused to admit.

The date upon which plaintiff filed that motion does not appear in the transcript, but it appears that a copy was served on defendant by mail on June 4, 1970. On July 13, 1970, in support of her motion, plaintiff filed verified copies of various papers, the first of which, in two parts, reads as follows:

'In The Circuit Court, City of St. Louis (Court of Domestic Relations)

September Term 1961

Tuesday, October 3rd, 1961

'Sue Wilson,

-vs-

Donald Shelton.

40439--E

'Now at this day this cause coming on for hearing on obligee's verified petition for support filed under the Uniform Reciprocal Enforcement of Support Laws of the States of Illinois and Missouri, comes Charles W. Kunderer,...