Tudor v. Tudor, No. 11649

CourtCourt of Appeal of Missouri (US)
Writing for the CourtTITUS; GREENE, P. J., and FLANIGAN
Citation617 S.W.2d 610
PartiesLuise TUDOR, Plaintiff-Respondent, v. Raymond TUDOR, Defendant-Appellant.
Decision Date26 May 1981
Docket NumberNo. 11649

Page 610

617 S.W.2d 610
Luise TUDOR, Plaintiff-Respondent,
v.
Raymond TUDOR, Defendant-Appellant.
No. 11649.
Missouri Court of Appeals, Southern District, Division One.
May 26, 1981.

Page 611

Charles M. Wesley, Waynesville, for plaintiff-respondent.

Dale H. Close, Richland, for defendant-appellant.

TITUS, Judge.

Plaintiff, on July 19, 1979, filed her "Petition" to recover of defendant, her former husband, the sum of "$18,560.04 for damages to date and $200.00 per month until her death or remarriage of plaintiff." The damages sought allegedly were the "direct and proximate result of defendant's breach" of a written "Settlement Agreement" the parties had made in anticipation

Page 612

of a divorce. After admitting that "Exhibit A," made a part of plaintiff's petition by reference, was "a copy of a settlement agreement and divorce decree pertaining to the parties," defendant's answer, inter alia, affirmatively pleaded that plaintiff's cause of action was barred by limitations as provided in § 516.350 1 and "that plaintiff has acquiesced in defendant's failure to remit alimony or maintenance payments as they become due, if any existed, and thereby has waived the right to enforce payments of the same and is thereby estopped from collecting the same." Following trial, at which only the plaintiff testified, the trial court on December 4, 1979, "ORDERED, ADJUDGED AND DECREED that Plaintiff recover judgment in the amount of Twenty Thousand Dollars ($20,000.) from Defendant and that same is hereby declared by the Court to be support." Defendant appealed.

Defendant's first point relied on is that the trial court "erred in awarding a judgment to plaintiff and against the defendant because the claim of the plaintiff was barred by limitations and presumed paid by statute." Rule 84.04(d) mandatorily required defendant, in his point relied on, to state "wherein and why" the claim was allegedly barred by limitations and "wherein and why" it is averred the claim was presumed to have been paid by statute, i. e., § 516.350. A point which, as here, presents nothing more than abstract conclusory statements, preserves nothing for appellate review. Ferguson v. Stott, 585 S.W.2d 541, 543(2) (Mo.App.1979). Nonetheless, we will gratuitously examine the point briefly.

In contemplation of a divorce, the plaintiff and defendant executed a written "Settlement Agreement" on April 3, 1969. The contract, designed to divide the liabilities and assets in which either or both had or claimed any interest, also provided, among other things, that defendant was to pay plaintiff $256 "per month for her support, until November 1, 1969," and $200 "per month thereafter until the death or remarriage" of the plaintiff. The June 10, 1969, decree of divorce concluded: "Contract in writing between the parties settling their property and property rights presented to the Court and approved and property and property rights as between the parties settled and adjudged as per terms and conditions set out in said contract and contract ordered filed and made a part of the files in this case."

The statute of limitations relied on by defendant is § 516.350. It provides that "(e)very judgment, order or decree of any court of record ... shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof" unless revived or unless payment has been made on the judgment "and duly entered upon the record thereof." This presumption is conclusive "and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever." This statute and predecessors thereof are applicable to judgments for periodic alimony and child support payments. Lanning v. Lanning, 574 S.W.2d 460, 461-462(1) (Mo.App.1978). Although the result admittedly does not commend itself, a former spouse's periodic payments of decretal alimony or child support allowances do not toll the running of the statute unless the payee spouse is astute and wary enough to revive the judgment or enter the payments upon the record. Pourney v. Seabaugh, 604 S.W.2d 646, 649-650(1, 2), (3) (Mo.App.1980).

However, the cautious reader of Pourney and similar opinions must be alert to the fact that those cases deal with decretal, not contractual alimony as we have here. Albeit the parties to a settlement agreement may indicate an intention to treat the contracted-for alimony incorporated into a divorce decree as decretal, rather than...

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16 practice notes
  • Marriage of Holt, In re, No. 63291
    • United States
    • United States State Supreme Court of Missouri
    • July 6, 1982
    ...State ex rel. Meyer v. Buford, 18 S.W.2d 526 (Mo.App.1929). But see Walls v. Walls, 620 S.W.2d 11 (Mo.App.1981); Tudor v. Tudor, 617 S.W.2d 610 (Mo.App.1981); Schmidt v. Schmidt, 617 S.W.2d 601 (Mo.App.1981); Pourney v. Seabaugh, 604 S.W.2d 646 (Mo.App.1980); Rincon v. Rincon, 571 S.W.2d 47......
  • Cox v. Ripley County, No. SD29740
    • United States
    • Missouri Court of Appeals
    • July 27, 2010
    ...defense. In support, Cox cites Gibson v. Ransdell, 188 S.W.2d 35 (Mo. 1945), Reed v. Rope, 817 S.W.2d 503 (Mo.App. 1991), Tudor v. Tudor, 617 S.W.2d 610 (Mo.App. 1981), and Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 790 (Mo.App. 1980).2 These cases do not assist Cox because our Sup......
  • Slone v. Purina Mills, Inc., Nos. WD
    • United States
    • Court of Appeal of Missouri (US)
    • June 4, 1996
    ...the act and conduct of the parties must be unequivocal, positive, and inconsistent with the existence of the contract. Tudor v. Tudor, 617 S.W.2d 610, 613 (Mo.App.1981). The Slones continued to service all farmers other than the pass-through farmers consistent with the terms of the Sales an......
  • Gray v. Jackson, No. 15852
    • United States
    • Court of Appeal of Missouri (US)
    • June 19, 1989
    ...has cited a good many precedents to this court, including In re Marriage of Holt, 635 S.W.2d 335 (Mo.banc 1982) and Tudor v. Tudor, 617 S.W.2d 610 (Mo.App.1981). We are also cited to § 516.350, but as that statute is interpreted by the defendant, it does not aid him. In the final analysis, ......
  • Request a trial to view additional results
16 cases
  • Marriage of Holt, In re, No. 63291
    • United States
    • United States State Supreme Court of Missouri
    • July 6, 1982
    ...State ex rel. Meyer v. Buford, 18 S.W.2d 526 (Mo.App.1929). But see Walls v. Walls, 620 S.W.2d 11 (Mo.App.1981); Tudor v. Tudor, 617 S.W.2d 610 (Mo.App.1981); Schmidt v. Schmidt, 617 S.W.2d 601 (Mo.App.1981); Pourney v. Seabaugh, 604 S.W.2d 646 (Mo.App.1980); Rincon v. Rincon, 571 S.W.2d 47......
  • Cox v. Ripley County, No. SD29740
    • United States
    • Missouri Court of Appeals
    • July 27, 2010
    ...defense. In support, Cox cites Gibson v. Ransdell, 188 S.W.2d 35 (Mo. 1945), Reed v. Rope, 817 S.W.2d 503 (Mo.App. 1991), Tudor v. Tudor, 617 S.W.2d 610 (Mo.App. 1981), and Rebel v. Big Tarkio Drainage Dist., 602 S.W.2d 787, 790 (Mo.App. 1980).2 These cases do not assist Cox because our Sup......
  • Slone v. Purina Mills, Inc., Nos. WD
    • United States
    • Court of Appeal of Missouri (US)
    • June 4, 1996
    ...the act and conduct of the parties must be unequivocal, positive, and inconsistent with the existence of the contract. Tudor v. Tudor, 617 S.W.2d 610, 613 (Mo.App.1981). The Slones continued to service all farmers other than the pass-through farmers consistent with the terms of the Sales an......
  • Gray v. Jackson, No. 15852
    • United States
    • Court of Appeal of Missouri (US)
    • June 19, 1989
    ...has cited a good many precedents to this court, including In re Marriage of Holt, 635 S.W.2d 335 (Mo.banc 1982) and Tudor v. Tudor, 617 S.W.2d 610 (Mo.App.1981). We are also cited to § 516.350, but as that statute is interpreted by the defendant, it does not aid him. In the final analysis, ......
  • Request a trial to view additional results

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