Lutes v. Lutes

722 S.W.2d 314, 1986 Mo. App. LEXIS 5169
CourtMissouri Court of Appeals
DecidedDecember 16, 1986
DocketNo. WD 37681
StatusPublished

This text of 722 S.W.2d 314 (Lutes v. Lutes) 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
Lutes v. Lutes, 722 S.W.2d 314, 1986 Mo. App. LEXIS 5169 (Mo. Ct. App. 1986).

Opinion

MANFORD, Judge.

This is a civil action arising from two separate garnishments filed by respondent against appellant’s wages. The judgments are affirmed.

The pertinent facts are as follows:

On September 7, 1983, the marriage of appellant (husband) and respondent (wife) was dissolved. The portion of the Dissolution Decree providing for maintenance stated the following:

11. The parties have entered into a Property Settlement Agreement, same being marked as Petitioner’s Exhibit Number 1 and introduced into evidence and which the Court has examined and finds the terms thereof to be proper, fair and reasonable in all respects and not unconscionable and is, therefore, approved by the Court; that same is not incorporated herein by express agreement of the parties except in regard to the provisions hereto relating to maintenance for the spouses, child custody and support, which provisions are as follows: “11. MAINTENANCE: Husband agrees to pay the Wife the sum of $200.00 per month as statutory maintenance, subject to court modification at a future date.
Husband agrees to pay to Wife, as contractual maintenance, not subject to court modification at a future date, the sum of of (sic) $800.00 per month for 24 months and thereafter the sum of $600.00 per month for the next 36 months, and thereafter the sum of $300.00 per month for the next 60 months.
Husband agrees to pay to Wife as a one time lump sum maintenance $200.00 on or before September 7, 1983.
The date of first payment of both statutory maintenance and contractual maintenance described herein shall be October 1, 1983.
Husband waives any right he may have for temporary or permanent maintenance from the Wife.”1

On June 27, 1985, respondent filed her request for general execution based upon appellant’s alleged failure to satisfy the above-described maintenance provisions. The garnishee filed answers to respondent’s interrogatories and stated that it owed appellant net earnings of $1,562.00 for the period of time from the service of the garnishment until the return date. Garnishee further stated that it had withheld $156.20,10 percent of the net earnings amount. Garnishee later filed an amended interrogatory answer stating that it had withheld $859.10, 55 percent of the net earnings amount. Respondent filed her denial of the garnishee’s interrogatory answers and moved that the garnishee pay the entire amount of wages, $1,562.00, into the court. Appellant filed his Motion to Quash the garnishment of any amount in excess of 10 percent of his net earnings.

At the hearing on said motions, respondent’s counsel admitted that appellant had made all of the $200.00 payments designated in the decree as statutory maintenance.

On September 17,1985, the court entered its order overruling appellant’s Motion to Quash Garnishment in excess of 10 percent [316]*316of wages. On September 20, 1985, the court entered its order requiring garnishee to pay into the court the sum of $1,562.00, the entire amount of wages due appellant during the execution period. The court did not issue findings of fact and conclusions of law. Appellant timely filed his notice of appeal.

On September 6, 1985, respondent filed a second request for general execution based upon appellant’s alleged failure to satisfy the above-described maintenance provisions. The garnishee filed answers to respondent’s interrogatories and stated that it owed appellant net earnings of $5,547.09 for the period of time from the service of the garnishment until the return date. The garnishee further stated that it had withheld $3,050.88, 55 percent of the net earnings amount. Respondent filed her motion on December 6, 1985, requesting that the court order the garnishee to pay the amount of $3,050.88, 55 percent of the net earnings amount. During the hearing on respondent’s motion, appellant made an oral Motion to Quash the garnishment in any amount in excess of 10 percent of his net earnings.

The court overruled appellant’s motion and on January 28, 1986, the court entered its order requiring the garnishee to pay into the court the sum of $3,050.88, the amount representing 55 percent of appellant’s net earnings. The court did not issue findings of fact and conclusions of law. Appellant timely filed his notice of appeal.

On May 15, 1986, this court ordered that the appeals be consolidated and therefore, said appeals are herein disposed of as one. Review of this cause is pursuant to Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

Appellant raises two points on appeal. The first, in summary, charges that the trial court erred in ordering the garnishee to pay into the court any amount in excess of 10% of appellant’s wages because 90% of appellant’s wages are exempt under § 525.-030.2, RSMo Supp.1984. As his second point, appellant alleges plain error in the court having ordered more than 55% of his net wages to be paid in, as a violation of federal law under Title 15 U.S.C. § 1673.

Garnishment is a purely statutory proceeding and strict compliance with all requirements imposed by statute is essential to confer and support jurisdiction in a garnishment proceeding. State ex rel. Eagle Bank and Trust Co. by Roderman v. Corcoran, 659 S.W.2d 775, 777 (Mo. banc 1983). The amount allowed to be withheld from a debtor’s wages is set forth in § 525.030.2, which states in part:

The maximum part of the aggregate earnings of any individual for any workweek, after the deduction from those earnings of any amounts required by law to be withheld, which is subjected to garnishment may not exceed (a) twenty-five percentum, or, (b) the amount by which his aggregate earnings for that week, after the deduction from those earnings of any amounts required to be withheld by law, exceed thirty times the federal minimum hourly wage prescribed by section 6(a)(1) of the Fair Labor Standards Act of 1938 in effect at the time the earnings are payable, or, (c) if the employee is the head of a family and a resident of this state, ten percentum, whichever is less.

In both garnishment proceedings, appellant filed affidavits claiming exemption of 90 percent of his wages, alleging that he was the head of a family and a resident of Missouri. Appellant also filed Motions to Quash both garnishments in excess of 10% of his wages, claiming the same “head of family” exemption. Respondent countered these motions, however, citing § 525.030.2, which also states:

The restrictions on the maximum earnings subjected to garnishment do not apply in the case of any order of any court for the support of any person, any order of any court of bankruptcy under chapter XIII of the Bankruptcy Act or any debt due for any state or federal tax.

Respondent does not deny that appellant is the head of a family and a Missouri resident.

[317]*317Respondent argues that the $800.00 per month (decreasing) payment, which appellant has failed to make, is maintenance for her support. To buttress her argument, respondent cites the case of Bryson v. Bryson,

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Related

Donovan v. Hamilton County Municipal Court
580 F. Supp. 554 (S.D. Ohio, 1984)
Nelson v. Nelson
720 S.W.2d 947 (Missouri Court of Appeals, 1986)
In Re Marriage of Allen
681 S.W.2d 535 (Missouri Court of Appeals, 1984)
State Ex Rel. Eagle Bank & Trust Co. Ex Rel. Roderman v. Corcoran
659 S.W.2d 775 (Supreme Court of Missouri, 1983)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
Bryson v. Bryson
624 S.W.2d 92 (Missouri Court of Appeals, 1981)
Dyche v. Dyche
570 S.W.2d 293 (Supreme Court of Missouri, 1978)
Lampe v. Lampe
689 S.W.2d 768 (Missouri Court of Appeals, 1985)

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Bluebook (online)
722 S.W.2d 314, 1986 Mo. App. LEXIS 5169, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lutes-v-lutes-moctapp-1986.