Zirul v. Zirul

• Court: Missouri Court of Appeals
• Writing for the Court: SOMERVILLE
• Citation: Zirul v. Zirul, 671 S.W.2d 320 (Mo. App. 1984)
• Decision Date: 17 April 1984
• Docket Number: No. WD,WD
• Parties: Ruth Elizabeth ZIRUL, Respondent, v. Elias E. ZIRUL, Appellant. 34510.

Page 320

671 S.W.2d 320

Ruth Elizabeth ZIRUL, Respondent, v. Elias E. ZIRUL, Appellant.

No. WD 34510.

Missouri Court of Appeals Western District.

April 17, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

May 29, 1984.

Application to Transfer Denied

July 17, 1984.

David M. Harding, Jeffrey S. Bay, Van Osdol, Magruder, Erickson & Redmond, Kansas City, for appellant.

Michael C. McCormick, McCormick & Logan, Lee's Summit, for respondent.

Before SOMERVILLE, P.J., and NUGENT and LOWENSTEIN, JJ.

SOMERVILLE, Presiding Judge.

Appellant's (hereinafter husband) motion to modify the alimony provisions of a Kansas divorce decree in the Circuit Court of Jackson County, Missouri, was dismissed on motion of respondent (hereinafter wife) and the husband has appealed.

The apical issue on appeal is whether Missouri (the forum state) is precluded from modifying the alimony provisions of a Kansas (state of rendition) divorce decree by reason of U.S. Const. Art. IV, § 1, popularly referred to as the "full faith and credit clause." A compendium of prior procedural events, both in Kansas and Missouri, is necessary to place this issue in proper focus for disposition.

On May 13, 1971, the District Court of Johnson County, Kansas, entered a decree of divorce dissolving the bonds of matrimony existing between the wife and husband. There were no children born of the marriage. Both parties were residents of the State of Kansas at the time and represented by counsel. Jurisdiction of the District Court of Johnson County, Kansas, both over the parties and the subject matter, has never been questioned.

In anticipation of the divorce, a "Property Settlement Agreement" was entered into between the wife and husband on April 2, 1971, which, inter alia, contained a provision for the payment of permanent alimony in a fixed monthly sum by the husband to the wife, which was found by the District Court of Johnson County, Kansas, to be "fair and equitable", and approved, and the terms thereof were "incorporated in", made a "part" of, and "merged in" the decree of divorce. The settlement agreement contained no provisions for modification. Kan.Stat.Ann. § 60-1610(d) (1965) ¹ provided, in part, that "[m]atters, settled by such an agreement, other than matters pertaining to the custody, support, or education of the minor children, shall not be subject to subsequent modification by the court except as the agreement itself may prescribe or the parties may subsequently consent." The husband admits that by reason of the aforesaid statutory provision, and Kansas case law, Alley v. Alley, 4 Kan.App.2d 109, 603 P.2d 215, 216 (1979), the Kansas divorce decree was not subject to modification in the state of rendition.

Following the divorce, the wife and husband moved from the State of Kansas. The husband became a resident of Jackson County, Missouri, and the wife became a resident of the State of Florida. Subsequently, the monthly alimony payments fell into arrears, thereby prompting the wife to petition the Circuit Court of Jackson County, Missouri, pursuant to § 511.760, RSMo 1978 and Rule 74.79, for registration of the Kansas divorce decree. A final order of registration of the Kansas divorce decree was entered by the Circuit Court of Jackson County, Missouri, on January 27, 1982. No appeal was taken by the husband therefrom.

The husband paid the monthly alimony payments which were in arrears, and, on August 19, 1982, filed a "Motion to Modify Decree of Divorce". His motion carried the same case heading and number as the registration of foreign judgment proceeding, thus accounting for the caption and alignment of the parties in the instant matter on appeal. Service of the motion on the wife in Florida was obtained pursuant to Rule 54.14.

Within due time the wife, in response to the husband's motion for modification, filed what was captioned "Motion To Dismiss For Lack Of Jurisdiction". The gist of the wife's "Motion To Dismiss For Lack Of Jurisdiction", if correctly perceived by this court, being that the Circuit Court of Jackson County lacked "jurisdiction" in the sense that the Kansas decree of divorce was immune from modification in Missouri, the forum state, under the "full faith and credit clause", as it was not subject to modification in Kansas, the state of rendition. The Circuit Court of Jackson County sustained the wife's motion to dismiss and, accordingly, entered an order dismissing the husband's "Motion To Modify Decree Of Divorce As To Maintenance", from which order the husband appealed.

The husband advances two arguments in a single point on appeal as bases for reversal: (1) registration of the Kansas decree in Missouri by the wife converted the Kansas decree into a Missouri decree for all purposes, including modification in accordance with and pursuant to Missouri law; and (2) Missouri, the forum state, had a legitimate public interest in entertaining the husband's motion for modification of the alimony provision of the Kansas divorce decree by reason of the fact that the husband was a resident of Missouri, thereby removing the Kansas divorce decree from the purview of the "full faith and credit clause" of the Federal Constitution.

As noted in Yarborough v. Yarborough, 290 U.S. 202, 212-13, 54 S.Ct. 181, 185-86, 78 L.Ed. 269 (1933), "[i]t was settled by Sistare v. Sistare, 218 U.S. 1, 30 S.Ct. 682, 54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann.Cas. 1061, that the full faith and credit clause applies to an unalterable decree of alimony for a divorced wife." Notwithstanding, the husband advances the tenuous argument that registration of the Kansas divorce decree in Missouri by the wife converted it into a Missouri decree for all purposes, thereby making it subject to modification into the law of Missouri, the forum state, even though not subject to modification in Kansas, the state of rendition. In support of his position, the husband relies on the following excerpt from Mangold v. Mangold, 294 S.W.2d 368, 369 (Mo.App.1956): "[A] foreign judgment duly registered in accordance with the provisions of the statute ... is now the judgment of the circuit court of Jackson County, Missouri, as fully as though it had been rendered by said court in a proceeding originating in that court; and it may be enforced in the same manner as any other like judgment may be enforced under Missouri law and procedure." (emphasis added)

In Mangold, a Kansas divorce decree was registered by the wife as a judgment in Missouri in accordance with the provisions of the statute for registration and enforcement of foreign judgments. Modification of the Kansas divorce decree was in no way involved. The sole issue on appeal in Mangold was whether Missouri or Kansas procedural law applied regarding enforcement of the judgment in Missouri. Mangold held that Missouri procedural law applied. The husband in the instant case seizes upon the language emphasized in the excerpt quoted from Mangold as judicially holding that registration of a foreign judgment in Missouri ipso facto converts the same into a Missouri judgment for all intents and purposes as if originally entered in Missouri. Building from there, the husband argues that under Missouri statutory and case law, citing § 452.110, RSMo 1978, and Whitworth v. Whitworth, 559 S.W.2d 292 (Mo.App.1977), the alimony provision of the Kansas divorce decree in question was amenable to modification. It is unnecessary to decide whether Missouri statutory and case law would sanction modification of the alimony provisions of the decree of divorce in question if included in a decree originating and culminating in a court of this state. Suffice it to say, the husband has taken the emphasized language in Mangold out of context and given it a tortured and expansive meaning which was never intended. The court in Mangold was addressing the foreign judgment in terms of being a "judgment" of the Circuit Court of Jackson County "as fully as though it had been rendered by said court in a proceeding originating in that court" in the sense or context that for purposes of enforcement it had all the attributes of an original judgment of that court. This view is entirely consistent with the legislative intent in enacting § 511.760, supra, captioned "Uniform enforcement of foreign judgments law", as judicially ascertained in Corning Truck & Radiator Service v. J.W.M., Inc., 542 S.W.2d 520, 525 (Mo.App.1976): "We believe that it is clear that in enacting the law the legislature intended to afford judgment creditors an...