Ford v. Ford

867 S.W.2d 639, 1993 Mo. App. LEXIS 1825, 1993 WL 490231
CourtMissouri Court of Appeals
DecidedNovember 19, 1993
DocketNo. 18690
StatusPublished
Cited by3 cases

This text of 867 S.W.2d 639 (Ford v. Ford) 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
Ford v. Ford, 867 S.W.2d 639, 1993 Mo. App. LEXIS 1825, 1993 WL 490231 (Mo. Ct. App. 1993).

Opinion

CROW, Judge.

Karen Susan Ford (“Karen”)1 filed a “Petition for Reimbursement of Necessaries” against her ex-husband, James Roland Ford (“James”). He filed a motion to dismiss.2 The trial court granted the motion. Karen appeals.

James maintains the trial court ruled correctly in that Karen’s claim was barred by res judicata and collateral estoppel. Karen disagrees. The dispute requires an abbreviated account of the litigation.

August 2, 1988. Karen files petition for dissolution of marriage against James, whom she had wed December 27, 1979.

September 12, 1988. Karen files affidavit for service by publication on James, as efforts to obtain personal service had been futile.

September 15, 1988. Service by publication begins.

November 1, 1988. Karen appears in trial court with her lawyer. James, who has filed no responsive pleading within the time allowed, fails to appear. Trial court receives evidence and enters decree of dissolution of marriage. Decree awards Karen sole legal and physical custody of parties’ three minor children. Decree also says: “... this Court makes no Orders regarding child support payable by ... James ... to ... Karen ... for the benefit of the minor children and retains jurisdiction to make any future Orders regarding child support.”

February 1, 1991. Karen, represented by an assistant prosecuting attorney, files “Motion for Child Support” bearing case number of dissolution action. Motion prays trial court to order James to pay child support “retroactive to the date of the filing of the Petition for Dissolution of Marriage.”

May 20, 1991. James is personally served in Oklahoma with summons and Karen’s motion.

[640]*640November 25, 1991. Karen, her lawyer, James, and his lawyer appear in trial court. Court receives evidence and determines James shall pay Karen child support of $279.72 per month. Court invites parties to submit briefs on issue of “retroactive child support.”

December 20, 1991. Trial court, by letter, informs parties:

... the Court concludes that it only has authority to order retroactive child support ... subsequent to the date of personal service. For that reason, the Court does order [James] to pay [Karen] child support retroactive to the date of service. [Karen] also argues that the Court should award [her] recovery for the value of the necessaries she furnished the minor [children] prior to the institution of the motion to modify.... Because this issue was not pleaded, the Court believes it does not have authority to render judgment for that amount.

January 23, 1992. Consistent with its conclusions of December 20, 1991, trial court enters “Order of Modification” commanding James to pay Karen child support of $279.72 per month, “retroactive to May 20, 1991.”

February 5, 1992. Karen files petition referred to in first sentence of this opinion. It bears ease number of dissolution action, and avers that between August 2, 1988, and May 20,1991, Karen provided food, clothing, shelter, and medical care for the parties’ three children. Petition asserts Karen has common law cause of action against James for reimbursement of expenditures for necessaries, and prays for $9,600.

August 17, 1992. James files motion to dismiss.

September 28, 1992. James requests, and receives, change of judge.

February 18, 1993. Docket entry: “[James’] Motion to Dismiss is granted.”

The record supplied us yields no clue about the trial court’s reason for dismissing Karen’s petition. However, Karen’s brief says James argued in the trial court that Karen’s claim for necessaries “merged with [Karen’s] prior actions, and [she] was now foreclosed from seeking reimbursement of her expenditures.”

James, in his brief, relies on Adams by Northcutt v. Williams, 838 S.W.2d 71 (Mo.App.E.D.1992). There, the mother of a child sued the putative father on May 26, 1988, under the Uniform Parentage Act seeking a determination of paternity, child support, and custody. On December 8, 1988, the trial court entered a “consent judgment” declaring the putative father was the biological father, placing custody with the mother, and ordering the father to pay $265 per month child support, retroactive to October 1, 1988. Id. The following year, the mother sued the father for “back child support” from the child’s birth in 1971 to the date of the consent judgment. Id. at 71-72. The trial court ruled the first action barred the second under the principle of res judicata. Id.

On appeal, the mother in Adams contended that the first suit was a statutory action for future child support, while the second was a common law action for reimbursement of past expenditures. Id. at 72. The Eastern District of this Court held the first suit could have included a count for reimbursement of past necessary support. Id. Quoting from Eugene Alper Const. Co., Inc. v. Joe Garavelli’s of West Port, Inc., 655 S.W.2d 132, 135 (Mo.App.E.D.1983), the Eastern District said in Adams:

A cause of action which is single may not be split and filed or tried piecemeal, the penalty for which is that an adjudication on the first suit is a bar to a second suit.... In general, the test for determining whether a cause of action is single and cannot be split is: (1) whether separate actions brought arise out of the same act, contract or transaction, (2) or whether the parties, subject matter and evidence necessary to sustain the claim are the same in both actions.

838 S.W.2d at 72.

Applying that test, the Eastern District’s analysis in Adams was:

[M]other’s first lawsuit involved a paternity, custody, and child support determination. Mother’s second lawsuit, an action for past child support, clearly arises out of [641]*641the same act or event as the first suit — the fathering of mother’s child.
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Mother attempted to split her single cause of action into two lawsuits. Both lawsuits involved the same parties. Mother was aware of all the basic facts contained in the second lawsuit when she filed the first lawsuit. It was incumbent upon her, and her attorney, to plead all grounds, theories, and counts in the first lawsuit. ...
Upon entry of the consent judgment in the first lawsuit, all of mother’s rights to remedies against father with respect to all or any part of the acts or events out of which the first action arose merged into that judgment.... the earlier judgment is conclusive not only as to matters actually determined in the prior action, but also as to other matters which could properly have been raised and determined therein.

838 S.W.2d at 72-73.

Karen maintains Adams does not apply here because her 1991 motion for child support was brought per § 452.370, RSMo Cum. Supp.1990. According to Karen, because of subsection 6 of that statute,3

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Bluebook (online)
867 S.W.2d 639, 1993 Mo. App. LEXIS 1825, 1993 WL 490231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ford-v-ford-moctapp-1993.