Marriage of Smith v. Smith

797 S.W.2d 798, 1990 Mo. App. LEXIS 1364, 1990 WL 129398
CourtMissouri Court of Appeals
DecidedSeptember 11, 1990
DocketNo. 57581
StatusPublished
Cited by2 cases

This text of 797 S.W.2d 798 (Marriage of Smith v. Smith) 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 Smith v. Smith, 797 S.W.2d 798, 1990 Mo. App. LEXIS 1364, 1990 WL 129398 (Mo. Ct. App. 1990).

Opinions

GRIMM, Judge.

In this action to set aside or quash an execution issued in a dissolution case, husband David 0. Smith appeals from the trial court’s denial of his petition. We affirm.

Husband raises two points of error. First, the trial court “erred in denying the petition to quash or set aside execution because the court ... does not have jurisdiction to issue a writ of general execution in that the award of the particular [checking] account is not a monetary judgment.” We disagree. Under the facts and circumstances here, the trial court did not err in denying the petition to quash.

Second, the trial court “erred in denying [husband] an evidentiary hearing ... because the court has equitable jurisdiction to determine if the execution calls for more than the amount lawfully due.” We disagree. The trial court did not err in refusing to conduct a hearing and properly characterized the proffered evidence as an improper collateral attack on the judgment.

I.

The dissolution hearing was held November 30,1988. In that hearing, wife said the parties had $22,404.55 in five Community Federal accounts when they separated in March, 1988. From four of them, she withdrew $7,897.00. She did not take any money from the fifth account, No. 5102-7375, which then contained $10,544.50.

In the dissolution hearing, husband testified all the Community Federal checking accounts had been closed. He did not say when the accounts were closed. Nor did he give any explanation for what happened to the money in the accounts, except that when wife made her withdrawals, there was $4,000 to $5,000 of outstanding checks on those accounts. He said “the approximate value of what is in the four accounts” is $6,000.00.

No checking account records were offered at the dissolution hearing. Nor did any Community Federal employees testify concerning these accounts.

The marriage was dissolved on February 8, 1989. In the decree of dissolution, the trial court found the total value of the marital property was $374,985.05. This total included “Community Federal Checking Account # 5102-7375, $10,544.50.”

The trial court awarded wife “items and cash of a value of $187,492.50 (one half of the value of the marital property), as follows:

[[Image here]]

Community Federal Checking Account No. 5102-7375 10,544.50”

The itemized property awarded wife totaled $126,132.08. Wife had claimed that one asset she received had an additional [800]*800$13,200.00 value to her, so the trial court added that amount to the valuation of assets set aside to her. Husband was ordered to pay wife $48,160.42 in order for her to receive her one-half of the assets.

Husband appealed; he did not post a supersedeas bond. In that appeal, among other things, he claimed the trial court erred in dividing the property because the trial court “failed to consider the outstanding checks and/or payments which had been made therefrom.” This court affirmed. In re marriage of Smith, 785 S.W.2d 764 (Mo.App.E.D.1990).

II.

On July 31, 1989, while the underlying dissolution judgment was pending on appeal, wife requested a general execution for $10,544.50. Following issuance of the execution, husband petitioned to set aside or quash the execution. His petition alleged the execution was void “for the reason that the Judgment on which said execution is issued has been satisfied to the extent that the bank accounts have been assigned and/or transferred to [wife].”

The parties submitted memoranda of law to the trial court. The trial court then met with the attorneys. At that time, the motion to quash was overruled.

At the same time, the trial court heard arguments as to whether an evidentiary hearing on the motion should be granted. Following those arguments, the trial court found “that all of the items for proof of evidentiary hearing are in fact to modify or revise the original judgment. The Court does not believe it has jurisdiction to do that [and] does not want to do that.” It then denied the request for an evidentiary hearing.

Husband then made offers of proof. He offered to prove (1) the balances in various accounts at Community Federal, (2) the balances due on various loans against a townhouse, (3) a riding mower and wagon were husband’s sole property, (4) the particular amount of savings bonds held in each parties name, (5) the value of townhouses owned by the parties through testimony of an appraiser, and (6) the terms of two leases. Husband submitted this evidence “in terms of [this] being an equitable proceeding” and asked the trial court to exercise its “equitable powers.”

The offers of proof were denied. In its written order, the trial court said the evidence would constitute “a collateral attack upon the judgment entered by this Court on February 8, 1989, a judgment presently on appeal.”

III.

Husband, in his first point, alleges the trial court “erred in denying the petition to quash or set aside execution because [it] does not have jurisdiction to issue a writ of general execution in that the award of the particular [checking] account is not a monetary judgment.”

We first state a few governing principles. A motion to quash execution is a collateral attack on the judgment. Vorhauer v. Sweeney, 217 S.W.2d 985, 987 (Mo.App.E.D.1949). Such a motion can have “merit only if the judgment was void for lack of jurisdiction of the parties, or the subject matter.” State ex rel. Jones v. Reagan, 382 S.W.2d 426, 430 (Mo.App.E.D.1964). No such point is made here.

“A motion to quash an execution cannot be substituted for an appeal and a defense which might have been valid ... cannot be raised in a collateral proceeding such as a motion to quash execution.” McConnell v. St. Louis County, 655 S.W.2d 654, 657 (Mo.App.E.D.1983). Nor can a motion to quash “reach alleged errors or irregularities prior to judgment.” Reis v. La Presto, 324 S.W.2d 648, 653 (Mo.Div. 2 1959). Such a motion lies “only where the record affirmatively discloses that the judgment is void, or in certain other limited situations where the right to execution is defeated by matters occurring subsequent to the judgment.” Id.

A party in whose favor a judgment has been rendered may have an execution. § 513.015, RSMo 1986. “Ordinarily, such judgment must be for money_” 30 AM. JUR.2d § 5, Executions (1967). Checking [801]*801and savings accounts represent sums of money on deposit with a financial institution. 10 AM.JUR.2d § 337, Banks and Banking (1963).

Here, the trial court clearly expressed its intent to award wife one-half of the marital property. To carry out this intent, the trial court meticulously identified each asset.

On many of the assets, including the account in question, the testimony conflicted as to value. The trial court, however, placed a monetary value on each asset, including the account in question. The account was identified by number and dollar amount.

Husband presented his asset valuation evidence to the trial court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Division of Employment Security v. Cusumano
809 S.W.2d 113 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
797 S.W.2d 798, 1990 Mo. App. LEXIS 1364, 1990 WL 129398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-smith-v-smith-moctapp-1990.