Warner v. Warner, 54722

• Decision Date: 18 August 1983
• Docket Number: No. 54722,54722
• Citation: 9 Kan.App.2d 6,668 P.2d 193
• Parties: Charles F. WARNER, Personal Representative of the Estate of Erna A. Warner, Deceased, Appellee, v. Charles M. WARNER, Appellant.
• Court: Kansas Court of Appeals

Page 193

668 P.2d 193

9 Kan.App.2d 6

Charles F. WARNER, Personal Representative of the Estate of Erna A. Warner, Deceased, Appellee, v. Charles M. WARNER, Appellant.

No. 54722.

Court of Appeals of Kansas.

Aug. 18, 1983.

Syllabus by the Court

1. Registration is a simplified alternative to bringing suit on a foreign judgment, and if suit is barred so is registration. Thus, K.S.A. 60-511, the general statute of limitations, and not the Kansas dormancy statutes governs the enforceability of foreign judgments in Kansas.

2. Under K.S.A. 60-2403 a Kansas judgment becomes dormant five years after its effective date. The effective date for dormancy purposes of a foreign judgment is the date it is registered.

3. Registration of a foreign judgment which is enforceable when registered gives the judgment creditor a new and additional five years to execute, regardless of when the judgment was rendered in the foreign state.

Robert B. Yohe, Overland Park, for appellant.

Craig U. Huntley and Lonnie A. Hamilton, Shawnee Mission, for appellee.

Before FOTH, C.J., and SPENCER and PARKS, JJ.

FOTH, Chief Judge.

Charles M. Warner appeals the trial court's denial of his motion to declare certain overdue payments required by a Missouri decree of separate maintenance registered in Kansas to be dormant judgments.

A Missouri court awarded Erna A. Warner, the plaintiff (now deceased), a decree of separate maintenance against Charles M. Warner, the defendant, on January 12, 1971. The defendant was ordered to pay the plaintiff $600 per month, starting on January 15, 1971. The Missouri court reduced the monthly payments to $300 on April 26, 1976.

On November 16, 1976, after defendant moved to Kansas, the plaintiff registered the Missouri decree in the District Court of Johnson County, Kansas, as a "foreign support order" under K.S.A. 23-487. She alleged that the past due support payments totalled $26,000, plus interest.

There ensued considerable procedural maneuvering, including a proceeding in aid of execution in October, 1981. Finally, in June, 1982, the defendant moved for a finding that payments due before October, 1976, five years before the attempted Kansas execution, were dormant judgments. The trial court denied the motion and entered judgment on that aspect of the case under K.S.A. 60-254(b ). Defendant has appealed.

The first issue to be resolved is the nature of the order registered in Kansas in November, 1976. Under Kansas law each installment of alimony becomes a judgment when due. Kendall v. Kendall, 218 Kan. 713, 717, 545 P.2d 346 (1976); Ediger v. Ediger, 206 Kan. 447, Syl. p 2, 479 P.2d 823 (1971). Missouri law is the same. Barbara v. Charles, 632 S.W.2d 92, 93 (Mo.App.1982); Wedel v. Wedel, 624 S.W.2d 869, 870 (Mo.App.1981). And cf. In re Marriage of Holt, 635 S.W.2d 335 (Mo.1982). Thus as to past due installments what was registered was a series of individual money judgments dating from January 15, 1971, through November 15, 1976.

The second issue is whether all of these judgments were eligible for registration. The Missouri dormancy statute was ten years (Mo.Ann.Stat. § 516.350 [Vernon 1952], so there is no question the judgments were enforceable in Missouri when registered here. The issue framed by the parties is based on the assumption that our dormancy statute, K.S.A. 60-2403, determines whether a foreign judgment is enforceable when it is filed in Kansas. The court addressed this issue in Alexander Construction Co. v. Weaver, 3 Kan.App.2d 298, 594 P.2d 248 (1979). In that case, the plaintiff obtained a Colorado judgment against the defendant in 1968. Under Colorado law, judgments are enforceable for twenty years. In 1977 the plaintiff filed the judgment in Kansas. The defendant argued, and the trial court agreed, that the plaintiff's claim was barred by the dormancy provisions set out in K.S.A. 60-2403 and 60-2404. This court affirmed the result, but rejected the trial court's reasoning. Registration is a simplified alternative to bringing suit on the foreign judgment, and if suit is barred so is registration. Thus, K.S.A. 60-511, the general statute of limitations, and not the Kansas dormancy statutes governs the enforceability of foreign judgments in Kansas. See also Johnson Brothers Wholesale Liquor Co. v. Clemmons, 233 Kan. 405, 661 P.2d 1242 (1983).

The statute of limitations for enforcement of overdue installments runs from the date the payments become due. See McKee v. McKee, 154 Kan. 340, 342, 118 P.2d 544 (1941); Peters v. Weber, 175 Kan. 838, 843-44, 267 P.2d 481 (195...