Summary
In Schaffer v. Security Fire Door Company, et al., Mo., 332 S.W.2d 860, it was ruled that on a motion to quash an execution under a divorce decree, the court should quash the execution to the extent that it exceeded the amount claimed or due, and thus to amend the execution.
Summary of this case from Backy v. BackyOpinion
No. 47800.
March 14, 1960.
APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS, JOHN K. REGAN, J.
Cecil Block, St. Louis, for appellant.
Charles E. Wells, St. Louis, for respondent.
This case was certified to this court by the St. Louis Court of Appeals. Our determination of it, however, is as though it were here by an original appeal. Supreme Court Rule 2.06, 42 V.A.M.S. (See 326 S.W.2d 376 for the opinion of the St. Louis Court of Appeals.) This is an appeal from the trial court's order overruling appellant's motion to quash an execution and to recall a garnishment.
In 1943 respondent Dorothy Schaffer (now Dorothy Barbier) obtained a divorce from present appellant Lloyd C. Schaffer. As a part of the decree as modified in 1954, Lloyd was ordered to pay $15 per week to Dorothy for the support and maintenance of each of their minor children, Gene and Vivian Jane.
In July 1957 Dorothy filed her affidavit for an execution averring that from June 7, 1954 through July 1, 1957 there was due her by reason of the order a balance of $1,903. An execution issued and Security Fire Door Company, a corporation, was summoned as garnishee as a result of a garnishment issued in aid of that execution. In August 1957 Lloyd filed a motion to quash the execution and recall the garnishment for the stated reason that he had fully complied with the terms of the divorce decree and thus was not indebted to Dorothy in any amount.
At a hearing on that motion Lloyd testified that he had paid the $15 a week for each child until December 1954 when he stopped paying as to his son upon learning that Gene was in the army, but that he had continued to pay $15 each week for support of his daughter; that Gene returned to civilian life in August or September 1955; that movant had learned that his son since his return was staying at Kingshighway and Delmar and he had heard the boy was married but had not verified the rumor. (Movant stated the conclusion, as averred in his motion, that he was not indebted to his former wife in any sum, but his further testimony clearly showed the facts, as he claimed them to be and as we have set them forth, as to payments made, and consequently his conclusion had only the probative effect of those facts upon which his conclusion admittedly was based.)
The record as supplemented in the court of appeals showed that on February 3, 1943, the date of the divorce, Gene was five years of age. It is apparent, therefore, that when he left the army in August or September 1955 he was seventeen or eighteen.
Dorothy unequivocally states or concedes in her brief that appellant is not liable to pay the $15 per week while Gene was in the army. She claims no amount which accrued while Gene was in the army but claims only $15 each week since Gene's discharge in September 1955, and she unqualifiedly asserts that the execution was issued for an amount in excess of that due and asks that it be corrected by remand with directions to quash it to the extent of the excess stated over the amount claimed.
While Lloyd asserts that the trial court erred in overruling his motion to quash, his argument is directed to sustaining the proposition that he was not liable for payments for Gene's support so long as Gene's military service continued. Furthermore, Lloyd's testimony (he was the only witness) did not establish his son's status since returning from the army. The record does not show whether the boy was married or single, whether he lived with his mother, what he was doing, or any other relevant fact; and, as we have heretofore pointed out, the supplemented record shows that Gene had not attained his majority but was 17 or 18 when he returned to civilian life in 1955.
It is apparent then that there was no showing in the trial court and there is nothing here either in the record or the briefs to indicate that appellant is not liable for the $15 weekly payments for his son's support which had accrued from the time in August or September 1955 when Gene was discharged from the army through the installment due July 1, 1957.
Under the foregoing circumstances it is clear that irrespective of what may have been the trial court's view with respect to Lloyd's liability for the amounts which had accrued while Gene was in the army, there is here no disputed issue for us to determine. That is because, we repeat, respondent does not seek to recover or claim any amount of money which may have accrued while Gene was in the army and the record fails to disclose and appellant fails to assert any reason for his nonliability for those payments which have accrued since Gene's return from the army. Our acceptance or recognition of the limitation voluntarily placed by respondent on her claim does not constitute an approval or disapproval of any case deciding whether the father is liable for payments to his former wife for the support of their minor son while that son is in military service.
Inasmuch as the execution admittedly calls for more than the amount claimed by respondent, the trial court's proper order, in the absence of further facts developed on remand, would be to correct the execution by quashing it to the extent that it is in excess of the amount claimed or due and to thus amend it by excluding those amounts to which respondent makes no claim. Steckler v. Steckler, Mo.App., 293 S.W.2d 129, 135, 136.
The judgment is reversed and the case is remanded with directions to quash the execution to the extent of $705 plus any amount in excess of $705 which the trial court finds accrued while the minor son was in military service, and to take whatever further action with respect to determining the correct total amount of the execution as may be appropriate upon the appearance of further facts, if any, which the parties, in the trial court's discretion, may adduce at a further hearing on the motion to quash.
HOLMAN and HOUSER, CC., concur.
The foregoing opinion by COIL, C., is adopted as the opinion of the court.
All concur.