Smith v. Thornsberry

852 S.W.2d 177, 1993 Mo. App. LEXIS 623
CourtMissouri Court of Appeals
DecidedApril 27, 1993
DocketNo. 18042
StatusPublished
Cited by1 cases

This text of 852 S.W.2d 177 (Smith v. Thornsberry) 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
Smith v. Thornsberry, 852 S.W.2d 177, 1993 Mo. App. LEXIS 623 (Mo. Ct. App. 1993).

Opinion

PARRISH, Chief Judge.

This is an appeal from an order entered by the Probate Division of the Circuit Court of Pulaski County, Missouri. The order granted, in part, a claim for delinquent child support. It also awarded personal representative’s fees to respondent Peggy Logan and attorney’s fees to respondent James E. Baldwin. The appeal is directed to the amount of the claim for delinquent child support that was granted and the award of personal representative’s fees to respondent Peggy Logan. This court affirms.

Appellants are Catherine Walsh Smith, an ex-wife of decedent, and Dustin D. Logan, the son of Ms. Smith and Harold Logan, decedent. The marriage of Ms. Smith and decedent was dissolved by a decree of dissolution of marriage entered December 30, 1974, in the Circuit Court of Stone County, Missouri. Dustin was the only child born of that marriage. He was born September 25, 1971. The decree ordered decedent to pay child support in the amount of $150 per month. A subsequent modification reduced the amount of child support to $100 per month.

After the dissolution of the marriage of Harold Logan and Ms. Smith, he married Peggy Logan. On June 28, 1987, Harold Logan died. Peggy Logan was appointed personal representative of decedent’s estate.

Appellant Catherine Smith filed a claim against decedent’s estate for back child support in the amount of $11,735. The trial court awarded Ms. Smith $7,184.78. The trial court allowed “back child support” from March 31, 1981, to June 1987. Pacts applicable to appellants’ second point on appeal will be set forth in the part of this opinion in which that point is discussed.

Appellants’ first point asserts that the trial court erred by not allowing the part of Ms. Smith’s claim for back child support “for the period prior to March 31, 1981.” Ms. Smith contends that payments of child support by Harold Logan kept the entire judgment alive; that the trial court’s award should have included amounts decedent owed for child support from the date of the decree of dissolution of marriage, December 30, 1974, until March 31, 1981, the date from which the trial court allowed the claim for unpaid child support.

Appellants’ brief represents that “Harold Logan paid no child support until an action was undertaken against him in Stone County, Missouri, in March of 1981 for the payment of child support.” This court’s scrutiny of the transcript1 has not identified testimony upon which this statement was based. However, Ms. Smith was asked the following questions and gave the following answers:

Q. And Mr. Logan was subsequently ordered to pay child support as a result of that divorce; is that correct?
A. Yes.
Q. Did you ever receive any child support payments directly from Mr. Logan himself?
A. No.
Q. Any payments that you’ve received were from the—
A. The court.
Q. So, that whatever the court’s records reflect would be the payment that you received—
[179]*179A. Yes.

The parties have alluded to a proceeding in 1981 in Stone County, Missouri, filed on behalf of Ms. Smith that was directed toward enforcement or collection of back child support. The legal file includes a copy of a pleading entitled “Motion for Contempt Citation.” A “filed” stamp on the pleading indicates that it was filed May 22, 1980, in the Circuit Court of Stone County. The record does not reveal what action was taken, if any, with respect to the pleading.

The transcript includes dialogue between trial counsel and the trial court in which appellants’ trial counsel stated that the claim that was made for back child support was “based upon a judgment, a decree of dissolution dated 12/30/1974 providing for child support.” There is also reference to a “modification, as well as an order in 1981.”2 Later, during the course of the hearing, reference was made to having “offered all the certified documents ... as C.” The “certified documents” were further described by appellants’ trial counsel as “certified copies of the child support records beginning in March 31, 1981, and going through August 29, 1986.” “Exhibit C” was not filed with this court.

Appellants’ trial counsel apparently presented, as Exhibit D, a compilation entitled “Paid to Catherine Smith.” It was described as “dates and amounts paid to Division of Family Services, with a total showing of $3,265, which was paid (inaudible) Division of Family Services.” The offer of Exhibit D in evidence was objected to by counsel for decedent’s estate because “it’s very cumulative in that the actual court records themselves would be the best evidence,” and for relevancy. That objection was overruled even though no court records, or certified copies thereof, were offered in evidence or otherwise presented to the trial court. Exhibit D was not filed with this court.

The respective positions of appellants and respondents regarding the first point on appeal revolve around an interpretation of § 516.350.3 Appellants refer to Lanning v. Lanning, 574 S.W.2d 460 (Mo.App.1978), for the proposition that judgments in divorce actions that provide for periodic payments of child support “are ‘presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof’ absent being kept alive by payments within such period or by revival.” Id. at 462, quoting § 516.350, RSMo 1969. Although this court is unable to glean with certainty what facet of the holding appellants deem helpful to them, it appears they are asserting that the compilation of data in their Exhibit D was evidence of sufficient payments on the judgment to keep it alive. That reliance is misplaced in that there is no showing that the trial court had any evidence of payments that were “entered upon the record” of the court in which the judgment for child support was rendered. Regardless of the correctness or lack of correctness of the trial court’s admission of Exhibit D into evidence, that exhibit was not an acceptable substitute for records of the court.

In Lanning, the court upheld the presumption that a judgment debt was paid because more than ten years had passed since the judgment had been rendered. There was no record of payment “entered upon the record.” There “was a margin entry 'purportedly made by [Mrs. Lan-ning’sj attorney on the judgment record under date of April 11, 1977, acknowledging receipt of all payments due through December 15,1965, of several sporadic payments in 1968 and 1970, and of one payment in 1977.” 574 S.W.2d at 462. The court held that judgment creditors’ recitals in margins of judgment records would not suffice as being payments that were “duly entered upon the record.” The court af[180]*180firmed the trial court’s order quashing a garnishment issued in an attempt to collect the time-barred judgment. Here, as in Lanning, there was no showing of payments “duly entered upon the record.”4 Appellants’ first point is denied.

Appellants’ second point contends that the trial court erred in awarding personal representative’s fees to Peggy Logan.

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852 S.W.2d 177, 1993 Mo. App. LEXIS 623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-thornsberry-moctapp-1993.