Davis v. Sullivan

762 S.W.2d 495, 1988 Mo. App. LEXIS 1687, 1988 WL 128779
CourtMissouri Court of Appeals
DecidedDecember 6, 1988
DocketNo. WD 40689
StatusPublished
Cited by5 cases

This text of 762 S.W.2d 495 (Davis v. Sullivan) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Sullivan, 762 S.W.2d 495, 1988 Mo. App. LEXIS 1687, 1988 WL 128779 (Mo. Ct. App. 1988).

Opinion

COVINGTON, Judge.

Cheryl Lynn Sullivan Davis appeals from two orders of the trial court. The first was a dismissal of her motion for modification of a Kansas divorce decree. The court dismissed that motion under the doctrine of full faith and credit. The second is a dismissal of Ms. Davis’ petition for necessaries. The judgments are affirmed.

Cheryl Davis and William Sullivan obtained a decree of divorce on May 24, 1971, from the District Court of Wyandotte County, Kansas. Subsequent to the entry of the decree of divorce there were three additional journal entries concerning child custody and support: on August 17, 1977, Cheryl Davis was awarded custody of the minor child, Chrisa Kathleen Sullivan, born June 3, 1967, and William Sullivan was ordered to pay the sum of $30 per week as child support; on July 25, 1980, the child support amount was reduced to $25 per week; on April 9, 1981, the child support was set at an amount of $1,150 per year. Chrisa moved with her mother to Missouri in August of 1977. Chrisa became eighteen, emancipated under Kansas law, on June 3, 1985.

On May 25, 1985, Ms. Davis petitioned the Circuit Court of Jackson County, Missouri, for registration of the Kansas decree. The court ordered registration of the Kansas judgment in June of 1985.

On May 31, 1985, Ms. Davis filed a motion to modify the Kansas decree, requesting an increase in child support to $500 per month. At the time of filing, the minor child Chrisa was seventeen years of age. Mr. Sullivan, who remained domiciled in Kansas, filed a motion to dismiss and a motion to set aside the registration of foreign judgment. On December 13, 1985, Ms. Davis filed a petition for necessaries, which was dismissed on February 27, 1986. Mr. Sullivan’s motion to dismiss the petition for registration of foreign judgment was overruled in February of 1986.

In January of 1988, Ms. Davis sought leave to amend her motion to modify and added a second count for necessaries. In her petition for necessaries, Ms. Davis requested reimbursement for necessaries in [497]*497the amount of $25,000 for monies expended from June 3, 1985, to the date of filing the petition. The court permitted the amendments which were then filed. Mr. Sullivan filed a motion to dismiss the motion to modify. The motion to dismiss was granted on March 1, 1988. Also on motion of Mr. Sullivan, the trial court later dismissed the petition for necessaries. Ms. Davis timely appealed from the orders.

Ms. Davis first contends that the trial court’s dismissal of her amended motion to modify was error. The question is the effect of a prior judgment which is not modifiable in the state of rendition.

As to maintenance and support awards which have become due prior to the filing of a motion to modify, full faith and credit requires that no modification be made unless allowed by the state of rendition. This court is bound by the holding of Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269 (1983). In Yar-borough, the U.S. Supreme Court reversed the Supreme Court of South Carolina and held that South Carolina courts were precluded by full faith and credit from modifying a Georgia child support order which was nonmodifiable under Georgia law. Id. at 212-13, 54 S.Ct. at 185. The Superior Court of Fulton County, Georgia, rendered a decree of divorce in 1929 and ordered the husband to establish a trust for the support of the minor child born of the marriage. Under Georgia law, payment of lump sum child support relieved the father of an obligation further to support the minor child. In 1930, the minor child, then sixteen years of age, was living with her maternal grandfather in South Carolina. Suing by him as guardian ad litem, the child brought an action in the South Carolina court to require her father, still a resident of Georgia, to make provision for her education and maintenance. She alleged that she was then ready for college and “without funds and, unless the defendant makes provision for her, will be denied the necessities of life and an education, and will be dependent upon the charity of others.” Id. at 204, 54 S.Ct. at 182. The South Carolina court denied the father’s contention that it was barred full faith and credit from modifying the Georgia decree. The United States Supreme Court reversed the South Carolina court. The Supreme Court held that the full faith and credit clause applies to an “unalterable decree of alimony for a minor child.” Id. at 213, 54 S.Ct. at 185. The court found that the mere fact of the child’s residence in South Carolina did not confer upon South Carolina the power to impose an additional duty upon the father who was not a resident and who had long been domiciled in Georgia. Id. at 212, 54 S.Ct. at 185. The court held that the father had fulfilled the duty which he owed his daughter by the law of his domicile and the judgment of its court, upon which he was entitled to rely. Id.; see also Reardon v. Reardon, 689 S.W.2d 127, 129 (Mo.App.1985); Hartman v. Hartman, 602 S.W.2d 932, 935 (Mo.App.1980).

The judgment which Ms. Davis seeks to have modified is a Kansas divorce decree entered in 1971. Under Kansas law, a child of eighteen years is emancipated. Kan.Stat.Ann. § 60-1610(a) (Supp.1987); Brady v. Brady, 225 Kan. 485, 492, 592 P.2d 865, 871 (1979). Chrisa became eighteen on June 3, 1985. Although Ms. Davis and Chrisa are now residents of Missouri, Mr. Sullivan remains a resident of the State of Kansas. Mr. Sullivan has fulfilled his duty to pay child support under the Kansas decree. Thus, under Yarborough, the modification is barred by the full faith and credit clause.

Ms. Davis relies on Thompson v. Thompson, 645 S.W.2d 79 (Mo.App.1982). The court in Thompson, building from the dissenting opinion of Justice Stone in Yarbor-ough, carved an exception to the holding of Yarborough and permitted a Missouri court to modify a Kansas decree where, at the time of modification, the father, mother, and children had all become residents of Missouri. Consequently, according to the reasoning of Thompson, Missouri was the only state with any continuing interest in the matters pertaining to the Thompson family. Thompson, 645 S.W.2d at 87.

Ms. Davis’ reliance upon Thompson is misplaced. The narrow exception to Yar-[498]*498borough turned exclusively upon the emphasis on the parties’ common domicile. In the present case, however, Mr. Sullivan’s domicile has remained in Kansas. Consequently, Thompson does not apply.

Ms. Davis also relies upon the Uniform Child Custody Jurisdiction Act, sections 452.440-452.550, RSMo 1986, which gives jurisdictional preference to the state of the child’s domicile in custody determinations. § 452.450. The Act, however, expressly states that it does not apply to judgments relating to child support or any other monetary obligation of any person except when that issue is ancillary to a custody determination. § 452.445(1).

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762 S.W.2d 495, 1988 Mo. App. LEXIS 1687, 1988 WL 128779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-sullivan-moctapp-1988.