Wills v. Wills, 53446
| Decision Date | 05 April 1988 |
| Docket Number | No. 53446,53446 |
| Citation | 750 S.W.2d 567 |
| Parties | In re the Marriage of Joann Elizabeth WILLS, Appellant, v. Robert Eugene WILLS, Respondent. |
| Court | Missouri Court of Appeals |
Richard Mark Goldstein, Cape Girardeau, for appellant.
Marsha Brady, Hillsboro, for respondent.
This is an appeal by appellant, Joann Elizabeth Wills, the former wife of respondent, Robert Eugene Wills, from an order of the circuit court of St. Francois County which sustained respondent's motion to quash a garnishment of funds requested by appellant from a "partnership" account. Appellant requested a garnishment in aid of execution for arrearages of child support. The trial court sustained a motion to quash filed by respondent because (1) "partnership" property is not subject to garnishment for the individual debts of a partner under § 358.250.2(3), R.S.Mo., 1986; and (2) such funds "are not property held in a form of joint interest under Section 454.528 RSMo", even though appellant sought to garnish the funds for arrearages of child support under the Child Support Enforcement Act of 1986, §§ 454.400-454.528 R.S.Mo., 1986. We affirm in part and reverse in part and remand with directions.
On September 22, 1983, appellant-wife filed a petition for dissolution of marriage against her husband, Robert Eugene Wills, and sought child support for a child. On December 16, 1983, the circuit court, inter alia, (1) ordered a dissolution of the marriage; (2) awarded custody of the parties' minor child, Kevin Ray Wills, to the appellant; (3) directed respondent-husband to pay $345.00 per month for child support; (4) divided the marital property; and (5) directed husband to execute a wage and income assignment. The wage assignment was filed with the court. In 1985, the court reduced the amount of child support to $300.00 per month. From the record it appears that respondent, prior to this proceeding, was delinquent in making child support payments which necessitated judicial proceedings.
The subject of these proceedings began on March 3, 1987, when appellant-wife sought garnishment in aid of execution. On that date she filed her request for "execution, garnishment or sequestration" in the amount of $4,126.97 for arrearages of child support payments. The garnishment was directed to the Boatmen's Bank of Jefferson County and directed the sheriff to "Garnish any personal account (and also Rainbow Lounge which AP [absent parent] also owns" at the Bank.) Garnishment was served on the bank on March 16, 1987.
On March 20, 1987, respondent filed his motion to quash the garnishment denying that he was in arrears through October, 1985, that the child, Kevin, had not lived with the appellant-wife since that time, and that since October, 1986, the child has been emancipated. The motion further alleged that the funds in deposit with the bank were "partnership" funds and as such were not subject to garnishment. Respondent moved the court to enter its order quashing the garnishment.
Prior to the hearing on the motion to quash, counsel for the respective parties agreed to authorize the bank to release one-half of the funds in the account which had been garnished and to deposit such funds, in the amount of $1,486.78, into the registry of the court pending the hearing and determination of the motion to quash.
On May 18, 1987, a hearing was held on the motion. Various witnesses, including appellant, respondent and their son, Kevin, testified. The testimony centered around with whom and when Kevin lived over a period of time, and the amounts paid by respondent to his son, to appellant and to others.
During the hearing, respondent testified that he was and had been in "partnership" with Joseph (Joe) Janos, in the "Rainbow Lounge" since July 4, 1985. He testified that the Rainbow Lounge did its banking at Boatmen's in Pevely, by means of a checking account in the name of the Rainbow Lounge, and that either he or Janos could sign checks on the account. The money that "goes into the account" comes "out of the lounge," and "it's all business money." He testified that when the garnishment "hit" the bank, "it about put me out of business." When asked if he and Janos had a written partnership agreement, Wills replied "Yes, we do," but he did not have the written agreement with him at the hearing.
On May 29, 1987, the trial court entered its order. The court found (1) that the minor child was not emancipated; (2) respondent's child support arrearages amounted to $2,877.00 after giving credit for amounts paid for the benefit of the child; (3) the sum of $1,486.78 paid into court under the garnishment was "from a partnership account,"; (4) that ; and (5) "said funds are not property held in a form of joint interest under Section 454.528 RSMo." The court, therefore, granted the motion to quash the garnishment and directed the clerk to return the funds paid into court to the partnership account at the bank.
In due time appellant-wife appealed. No appeal is taken from those portions of the trial court's order as to the amount of arrearages or that the child has not been emancipated. The only issue appealed is the order granting the motion to quash because the funds were held to be "partnership" funds.
On appeal, appellant contends that the trial court erred in quashing the motion because (1) there was no substantial evidence to show that a "partnership" existed between respondent and Janos and in the alternative (2) that if there was substantial evidence to show a partnership, § 454.528, R.S.Mo., 1986 of the Child Support Enforcement Act prevails over § 358.250.2(3) which provides that a partner's right in specific partnership property is not subject to execution except upon a claim against the partnership.
The respondent contends that the trial court did not err because the bank account was a partnership asset which is not subject to execution, and that the proper and exclusive procedure is to follow the provisions of § 358.280, which authorizes the court to "charge" the interest of the debtor-partner with the payment of the unsatisfied amount of the judgment debt.
Appellant argues that the provisions of § 454.528 of the Child Support Enforcement Act prevail over § 358.250 for the reasons that (1) the plain language of § 454.528 makes that section applicable to garnishment in aid of execution of the interest a partner has in a partnership, despite § 358.250.2(3); (2) § 454.528 should be construed to effect its remedial purpose of enforcing judgments for child support; and (3) § 454.528 is a specific statute relating to enforcement of child support, while § 358.250 is a general statute which should be subordinated to the specific.
This appeal, therefore, involves the delicate balancing of the express provisions of Missouri's Uniform Partnership Law as embodied in § 358.250.2(3), the Child Support Enforcement Act as embodied in § 454.528 and the Dissolution Law, § 452.140 so as to determine whether one partner's interest in a partnership is subject to execution to enforce a judgment for his arrearages for child support.
Section 452.140 provides in pertinent part that:
No property shall be exempt from attachment or execution in a proceeding instituted by a married woman for maintenance, nor from attachment or execution upon a judgment or order issued to enforce a decree for alimony or for the support and maintenance of children.
Section 454.528 provides in relevant part that:
1. The interest of one or more owners of any real or personal property held in joint tenancy with right of survivorship, or otherwise held in any form of joint interest, except for property held in the name of a husband and wife and no other, are [sic] subject to execution as provided in this section for the sole purpose of enforcing judgments or orders for child support or maintenance.
* * *
* * *
3. Any party in possession of a judgment or order for child support or maintenance may request levy and execution from a court of competent jurisdiction against real or personal property owned by the obligor [a person who owes a duty of support] jointly with another person as provided in this section. Unless one or more of the joint owners presents to the court, within ten days after the return date of the execution, a true copy of a prior written agreement setting forth the various interests of the joint owners, or the court determines otherwise after holding a hearing ..., it shall be presumed that the interests of the joint owners are equal. Upon levy, the execution shall constitute a lien against the obligor's presumed interest in the property. Any one or more of the joint owners may obtain relief from the lien by filing with the court a copy of a prior written agreement setting forth the various interests of the joint owners, without the necessity of filing a petition under subsection 5 of this section. (Emphasis added).
Section 358.250 of the Uniform Partnership Law provides in pertinent part that:
1. A partner is co-owner with the partners of specific partnership property holding as a tenant in partnership.
* * *
* * *
2. (3) A partner's right in specific partnership property is not subject to attachment or execution, except on a claim against the partnership.
Section 358.260 provides that "[a] partner's interest in the partnership is his share of the profits and surplus, and the same is personal property."
Section 358.280 provides that on "due application to a competent court" by any "judgment creditor" of a partner, the court may "charge" the interest of the debtor partner with payment of the judgment and may then or later appoint a receiver of his share of the profits....
To continue reading
Request your trial
-
91st Street Joint Venture v. Goldstein
...appeal denied, 231 Conn. 913, 648 A.2d 153 (1994); Nigri v. Lotz, 216 Ga.App. 204, 453 S.E.2d 780, 782-83 (1995); Wills v. Wills, 750 S.W.2d 567, 574 (Mo.App.1988); Myrick v. Second National Bank of Clearwater, 335 So.2d 343, 345 (Fla.App.2d Dist.1976); Tupper v. Kroc, 88 Nev. 146, 494 P.2d......
-
Dispensa v. University State Bank
...Inc., 351 So.2d 1106, 1108 (Fla.Dist.Ct.App.1977); Nigri v. Lotz, 216 Ga.App. 204, 453 S.E.2d 780, 782 (1995); Wills v. Wills, 750 S.W.2d 567, 574 (Mo.Ct.App.1988); Major Real Estate & Inv. Corp. v. Republic Fin. Corp., 695 P.2d 893, 894 (Okla.Ct.App.1985); Shirk v. Caterbone, 201 Pa.Super.......
-
Hellman v. Anderson
...authorizes sale of a charged partnership interest. (FDIC v. Birchwood Builders (1990) 240 N.J.Super. 260, 573 A.2d 182; Wills v. Wills (Mo.App.1988) 750 S.W.2d 567; Bohonus v. Amerco (1979) 124 Ariz. 88, 602 P.2d 469; Tupper v. Kroc (1972) 88 Nev. 146, 494 P.2d 1275; Beckley v. Speaks (1963......
-
Regions Bank v. Alverne Assocs., LLC
...member's distributional interest with the unsatisfied amount of a judgment. See Mo.Rev.Stat. § 347.119 ; see also Wills v. Wills, 750 S.W.2d 567, 574 (Mo.App.E.D.1988) (applying Section 358.280, which governs charging orders against individual debtor-partners). Section 347.119 provides, in ......