Walker v. Walker, 71794

• Decision Date: 12 August 1997
• Docket Number: No. 71794,71794
• Citation: 954 S.W.2d 425
• Parties: Catherine Delores WALKER, Plaintiff/Respondent, v. Gary James WALKER, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 425

954 S.W.2d 425

Catherine Delores WALKER, Plaintiff/Respondent, v. Gary James WALKER, Defendant/Appellant.

No. 71794.

Missouri Court of Appeals,

Eastern District,

Division Two.

Aug. 12, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 9, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Gary James Walker, St. Louis, pro se.

Law Offices of Mary Ann Weems, Robert E. Faerber, Mary Ann Weems, Clayton, for plaintiff/respondent.

PUDLOWSKI, Judge.

Appellant (husband), acting pro se, appeals the judgment of the Circuit Court of St. Louis County, granting respondent's motion to dismiss appellant's motion to revise Qualified Domestic Relations Order, which orders a portion of appellant's pension from the Railroad Retirement Board to be distributed to respondent (wife).

Husband, Gary James Walker, and wife, Catherine D. Walker, entered into a separation agreement pursuant to a decree of dissolution entered by the circuit court on March 7, 1994. On September 7, 1994, the circuit court entered a Qualified Domestic Relations Order (QDRO), distributing a portion of husband's Tier II benefits of his railroad retirement pension to wife. On January 25, 1995, husband filed a motion to modify the QDRO (1995 motion), alleging that the QDRO did not reflect the parties intent as articulated in the separation agreement. The motion was denied on March 17, 1995. Husband did not appeal this order. More than a year later, on August 13, 1996, husband filed another motion to revise the QDRO (1996 motion), alleging that the QDRO did not effectuate the express intent of the parties as it was not husband's intention to award wife the share of his Tier II benefits which are disability based benefits. Wife filed a motion to dismiss husband's motion based on res judicata and collateral estoppel. Wife's motion to dismiss was heard and sustained on November 27, 1996. Husband filed a motion for rehearing and it was denied. Husband filed a motion to supplement the record which has been taken with this appeal. He appeals the trial court's judgment sustaining wife's motion to dismiss.

Because we find, as hereinafter discussed, the trial court correctly dismissed the 1996 motion on grounds of res judicata and collateral estoppel, we deny points I, II and IV of husband's appeal. Because nothing in the record indicates husband raised the issues in points III, V and VI in his 1996 motion, we are estopped from addressing the merits of those points. Accordingly, we deny those points. Because of these findings husband's motion to supplement the record is moot. We affirm the judgment of the trial court. However, a brief discourse addressing the pro se's improper allegations of error is warranted.

In his first point, husband asserts that the trial court incorrectly sustained wife's motion to dismiss husband's motion to revise the QDRO because Section 452.330 RSMo 1994 allows for more than one attempt to modify the QDRO. While Section 452.330 allows for more than one attempt to modify a QDRO, it may be done only for the purpose of "establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the order." However, a party cannot file a motion to modify, asserting the same basis for modification in each motion, and ignore the doctrines of res judicata and collateral estoppel in the process. ¹

Wife asserts in her reply brief that husband's 1996 motion to revise is merely an attempt to relitigate the same issues brought forth in the 1995 motion and, therefore, is barred by res judicata and collateral estoppel. After a review of the record we agree.

Res judicata is comprised of two separate and distinct doctrines: claim preclusion, known as res judicata and issue preclusion, known as collateral estoppel. Wolfe v. Central Mine Equipment Co., 895 S.W.2d 83, 87 (Mo.App. E.D.1995). In determining whether a claim is barred by collateral estoppel, we consider four factors: 1) whether the issue decided in the prior adjudication (1995 motion) was identical with the issue presented in the present action (1996 motion); 2) whether the prior adjudication resulted in a judgment on the merits; 3) whether the party against whom collateral estoppel is asserted was a party or in privity with a party to the prior adjudication and 4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate in the prior suit. Meckfessel v. Fred Weber, Inc., 901 S.W.2d 335, 339 (Mo.App. E.D.1995).

We find that the trial court correctly dismissed the 1996 motion on collateral estoppel grounds. In both motions, husband presented an identical issue, asserting that the QDRO did not distribute husband's Tier II benefits in the manner agreed upon in paragraph number eight of the separation agreement. Secondly, the 1995 motion was heard and ruled...