Marriage of Hansen v. Hansen

734 S.W.2d 287, 1987 Mo. App. LEXIS 4521
CourtMissouri Court of Appeals
DecidedAugust 4, 1987
DocketNo. 52310
StatusPublished
Cited by3 cases

This text of 734 S.W.2d 287 (Marriage of Hansen v. Hansen) 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
Marriage of Hansen v. Hansen, 734 S.W.2d 287, 1987 Mo. App. LEXIS 4521 (Mo. Ct. App. 1987).

Opinion

KAROHL, Judge.

In this garnishment proceeding former wife, garnishor, appeals from an order of the trial court which overruled motion of former husband, as garnishee, to quash garnishment for unpaid child support. Former wife sought unpaid child support for the children under a PDL award entered on March 27,1984 in a pending dissolution proceeding filed by former wife. On November 6, 1985 the Juvenile Court entered an order terminating child support payments. Former wife appeals because the order overruling the motion contains a further order that she is entitled to support under the PDL order from the date of the [288]*288PDL order to December, 1984 for two of three children and to July, 1985 for the third child. She sought support for all three until the Juvenile Court terminated the order on November 6, 1985.

Former wife claims the order limiting her recovery is erroneous because: (a) the trial court had no jurisdiction to retroactively reduce former husband’s obligation to pay on an existing judgment; and, (b) former husband’s allegation of “payment” in his motion to quash was not supported by any evidence. We find the claim of “payment” is a matter of fact to be decided by the trial court and there was no evidence presented in support of husband’s motion to quash. Accordingly, we reverse and remand for a factual hearing on former husband’s claim. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

The dispute between the parties on the question of PDL child support began when former husband filed an unverified motion to quash garnishment on a single allegation “[t]hat Respondent has in fact paid all sums due for said child support and is not indebted to Petitioner.” The issue involves both a factual and a legal dispute. The question before the trial court was, during what period of time after the PDL was entered on March 27,1984 was former husband and father obligated to pay child support to former wife under the PDL order?

Former wife answers the question by reference to the award of $80 per week for three children entered on March 27, 1984 and the date the order was terminated by the Juvenile Court on November 6, 1985. Former husband recognizes the date of the PDL, but claims “payment” of all sums due by reference to additional facts including the date he assumed actual custody of two of the children, December 26,1984, and the date the third child was placed in a foster home by an order of the Juvenile Court, July 17, 1985.

The trial court adopted his argument and entered its order as if supported only as a question of law. The execution supported by the garnishment was for $8,203.94. By reference to the minutes of proceedings we learn the court ordered a payout to former wife of $1,467.25 from the registry of the court on August 19, 1986. Other than this sum the record fails to disclose what payments in cash, if any, were made by former husband to former wife under the PDL support order.

We first note that a PDL order is a temporary order, pending final decree. Hibdon v. Hibdon, 589 S.W.2d 646, 647-48 (Mo.App.1979); [decided prior to the current Dissolution of Marriage Statutes]. Gross v. Gross, 319 S.W.2d 880, 883 (Mo.App.1959). The award is authorized by Section 452.315.1 RSMo 1978. It is defined by that section to be a temporary award. The termination of the underlying dissolution proceeding terminates the award. In the present case dissolution was granted on March 11, 1985. In the dissolution decree no custody orders and no provisions for child support were made because these matters were previously certified to the Juvenile Court for determination. Section 211.051 RSMo 1982. If the garnishment attempted to attach funds for non-payment after the date of dissolution then, as a matter of law, it is ineffective beyond the date of dissolution.

We learn from»the dissolution petition filed by former wife and the cross-petition for dissolution filed by former husband that the parties separated on August 10, 1983. At that time the three children involved were residing with their mother. Shannon, now eight years of age, resided with her mother, but her legal custody had been previously awarded to the Division of Family and Childrens’ Services. The dissolution court transferred matters of custody and support to the Juvenile Court on October 19, 1984. Thereafter, the Juvenile Court awarded legal custody of Steven, now seven years of age, and Samuel, now four years of age, to the Division of Family and Childrens’ Services. On December 26, 1984 former husband and father obtained actual custody of Steven and Samuel. At the time the execution and garnishment which led to the present litigation was filed, former wife and the mother of the three children did not have legal or actual custody of any of the children.

[289]*289For the following reasons we conclude that the execution and garnishment by former wife is effective only as to monies owed during the time she had actual custody of the three children if, as a matter of fact, actual custody was transferred by her consent or by further order of court after the temporary order for child support was entered, but in no event beyond the date of dissolution of marriage of March 11, 1985. We further find the trial court may order a partial satisfaction of the child support judgment on the basis of evidence accepted by the court which supports a determination of “payment” by direct support with the consent of the mother or by new court order. Such order is not a retroactive reduction of a judgment for child support. The sums not paid accumulate, but are subject to a credit, if found due.

The general rule in Missouri is that a trial court is without jurisdiction to retroactively modify an existing decree. Section 452.370.1 RSMo Cum Supp. 1978; Bopp v. Bopp, 671 S.W.2d 348, 351 (Mo.App.1984). A father may, however, be allowed credit for payments to a mother when equitable and pursuant to an order of a final divorce decree. Anderson v. Anderson, 684 S.W.2d 942, 943 (Mo.App.1985). This equitable exception allows a father credit for direct support provided to the children with the express or implied consent of the mother. Id. If a wife acquiesces to the treatment of support payments from the father, he is entitled to credit for direct support of the children. Meyer v. Meyer, 493 S.W.2d 42, 45-46 (Mo.App.1973). A husband bears the burden of showing that the wife acquiesces to lack of support payments. See, State Division of Family Services v. Willig, 613 S.W.2d 705, 706 (Mo.App.1981).

On the present record former husband and father asserts “payment.” The garnishment asserts non-payment. The record before the trial court is silent on the question of consent. No evidence was introduced to support a finding on this issue. Former husband offered no affidavit, stipulation or testimony before the trial court. There was no evidentiary hearing. Neither the trial court nor this court could determine the circumstances under which the actual custody of Samuel and Steven was transferred to respondent former husband.

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Bluebook (online)
734 S.W.2d 287, 1987 Mo. App. LEXIS 4521, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-hansen-v-hansen-moctapp-1987.