Opinion
No. WD 65445
October 31, 2006
Appeal from the Circuit Court of Platte County, Hon. Gary D. Witt.
Michael W. McCrary, Counsel for Appellant.
Kim G. Schwartzkopf, Counsel for Respondent.
Before Howard and Holliger, J.J.
Opinion
Thomas Polen appeals the judgment of the trial court denying his motion to quash the garnishment of his wages by Jerry Crockett. Mr. Crockett sought to garnish Mr. Polen's wages based on a judgment entered against Mr. Polen and in favor of Mr. Crockett on a claim for failure to pay on a promissory note in the amount of $3600. In his first point on appeal, Mr. Polen asserts that the trial court erred in denying his motion to quash because, under section 516.350.1, RSMo Cum. Supp. 2005, the underlying judgment expired and Mr. Crockett did not revive the judgment. In his second point on appeal, Mr. Polen claims that the trial court erred in denying his motion to quash because, under section 516.320, RSMo 2000, there was no written acknowledgement or promise entered into evidence that could have revived the judgment past the ten-year statute of limitations.
Mr. Crockett did not file a motion to revive the September 13, 1994 judgment as required by Rule 74.09 and, therefore, the only way in which Mr. Crockett's writ of garnishment may be enforced beyond the ten-year statute of limitations is by payment on the judgment. The payments made by Mr. Polen in this case, however, were involuntary payments because they were the result of garnishment of his wages and, therefore, the payments were insufficient to toll the statute of limitations. Thus, the trial court erred in denying Mr. Polen's motion to quash garnishment. Accordingly, the trial court's judgment is reversed and remanded with instructions to grant Mr. Polen's motion to quash garnishment and order that Mr. Polen be reimbursed for all sums garnished after expiration of the judgment.
Factual and Procedural Background
In June 1994, Mr. Crockett filed an action against Mr. Polen for failure to pay on a promissory note. On September 13, 1994, the trial court entered judgment against Mr. Polen and in favor of Mr. Crockett in the amount of $3600, plus interest and costs. In October 1994, Mr. Crockett issued a request for a writ of garnishment to Mr. Polen's employer, Trans World Airlines (TWA). In February 1995, TWA answered Mr. Crockett's interrogatories, which indicated that no funds were available for garnishment because of a prior wage attachment.
On February 27, 2004, Mr. Crockett issued another request for a writ of garnishment to Mr. Polen's employer, American Airlines. On March 29, 2004, the clerk of the Platte County Circuit Court filed a record of garnishment check in the amount of $497.06 from AMR Corporation. The clerk filed a second record of a garnishment check in the amount of $497.06 on April 12, 2004. Thereafter, on April 20, 2004, Mr. Polen filed a motion to quash wrongful garnishment, which alleged that he had satisfied the September 13, 1994 judgment in March 1995. Following the filing of Mr. Polen's motion, on April 26, 2004, May 10, 2004, and May 26, 2004, the clerk of court filed three additional records of garnishment checks received from AMR, in the amounts of $497.06, $476.58, and $506.13, respectively.
On August 26, 2004, the trial court held a hearing on Mr. Polen's motion to quash, which the court ultimately denied. After the trial court's judgment denying Mr. Polen's motion to quash, on September 13, 2004, September 27, 2004, and December 20, 2004, the clerk of court filed records of garnishment checks received from AMR in the amounts of $523.94, $523.94, and $475.55, respectively.
On January 24, 2005, Mr. Polen filed a second motion to quash garnishment, which alleged that the execution should be quashed because the underlying judgment expired on September 13, 2004. Mr. Polen requested that the court quash any garnishments issued since September 13, 2004, and order Mr. Crockett to pay treble damages, attorney's fees and costs. Following a hearing, the trial court denied Mr. Polen's motion. Mr. Polen filed this appeal. Mr. Crockett has filed with this court a motion for sanctions and damages for frivolous appeal and a motion to strike Mr. Polen's reply brief.
Jurisdiction
This court has a duty to examine, sua sponte, the finality of the trial court's judgment because this court's jurisdiction extends only to appeals from a final judgment. Gibson v. Brewer, 952 S.W.2d 239, 244 (Mo. banc 1997). Without a final judgment, an appellate court lacks jurisdiction, and the appeal must be dismissed. Id. An exception to this rule exists, however, under section 512.020, "and permits a party to directly appeal `from any special order after final judgment in the cause.'" Brooks v. Brooks, 98 S.W.3d 530, 531 (Mo. banc 2003) (quoting section 512.020, RSMo 2000). A special order after final judgment in the cause "`contemplates that a judgment has become final and that one of the parties is attempting to enforce the judgment or to attack the enforcement of the judgment [with a subsequent order].'" Id. (citation omitted).
After Brooks was decided, in 2004, section 512.020 was amended with the addition of a provision not relevant to this appeal. The current version of section 512.020 applicable here provides:
Any party to a suit aggrieved by any judgment of any trial court in any civil cause from which an appeal is not prohibited by the constitution, nor clearly limited in special statutory proceedings, may take his or her appeal to a court having appellate jurisdiction from any:
. . . .
(5) Final judgment in the case or from any special order after final judgment in the cause; but a failure to appeal from any action or decision of the court before final judgment shall not prejudice the right of the party so failing to have the action of the trial court reviewed on an appeal taken from the final judgment in the case.
"[A] motion to quash an execution is a special proceeding attacking the enforcement of a judgment" and, therefore, a trial court's ruling on such a motion falls under the special order exception and is in general appealable. Carrow v. Carrow, 294 S.W.2d 595, 597 (Mo.App. 1956). See also Nimmo v. Nimmo, 616 S.W.2d 131, 133 (Mo.App.S.D. 1981) ("order authorizing execution, like an order quashing execution, is a special order after final judgment and, as such, is appealable"). Nevertheless, "[w]hile a trial court's order quashing a garnishment amounts to a final judgment from which an appeal will lie, an order overruling or denying a motion to quash a garnishment is not a final judgment." Antonacci v. Antonacci, 892 S.W.2d 365, 367 (Mo.App.E.D. 1995). In this case, because the trial court denied Mr. Polen's motion to quash the garnishment, an appeal would generally not lie. An exception exists, however, and the denial of a motion to quash garnishment will be considered a final appealable judgment, when "either there has been a final disposition of the case or where the property garnished is deposited with the court." Osmun v. Osmun, 148 S.W.3d 845, 846 (Mo.App.E.D. 2004).
In this case, Mr. Polen filed his second motion to quash garnishment on January 24, 2005. After filing his motion and through May 2005, Mr. Polen's employer continued to garnish his wages. On June 20, 2005, Mr. Crockett filed a release of garnishment against Mr. Polen's employer, American Airlines. On June 29, 2005, Mr. Crockett filed a release from liability and satisfaction of judgment, which acknowledged receipt from Mr. Polen of $7,341.12 and acceptance of that amount in full payment and satisfaction of the September 13, 1994 judgment.
"In Missouri, the acknowledgement of satisfaction of a judgment by a judgment creditor is prima facie evidence that the judgment has been paid, and if the acknowledgement of satisfaction is bona fide and correctly done, it forever discharges and extinguishes the judgment." United States v. Brooks, 40 S.W.3d 411, 416 (Mo.App.S.D. 2001) (internal citations omitted). Here, Mr. Crockett filed a release from liability and satisfaction of judgment on June 29, 2005. On its face, the document appears to be bona fide and correct in form. Specifically, the release identified and described the judgment being released, recited that the payments received by Mr. Crockett were "in full payment and satisfaction," and was signed by Mr. Crockett's attorney. Id. Thus, "[i]n form and content, the documents comply with the applicable procedural rule for satisfying a judgment." Id. (citing Rule 74.11). In addition, Mr. Polen does not claim that the satisfaction is not bona fide and correct in form. Id. Therefore, Mr. Crockett's release and satisfaction forever discharges the September 13, 1994 judgment. Id. Accordingly, "there has been a final disposition of the case" and, therefore, the trial court's judgment denying Mr. Polen's motion to quash is appealable. Osmun, 148 S.W.3d at 846.
Rule 74.11 provides:
(a) Acknowledgment of Satisfaction. When any judgment or decree is satisfied otherwise than by execution, the judgment creditor shall immediately file an acknowledgment of satisfaction.
(b) Who May Enter Satisfaction. Satisfaction may be entered by the judgment creditor, his attorney of record, or an agent; if entered by an agent who is not the attorney of record, his authority shall be filed.
(c) Satisfaction of Judgment Entered by the Court. If a judgment creditor who has received satisfaction of a judgment fails to acknowledge such satisfaction immediately, any interested person may apply to the court where the judgment was entered for an order showing satisfaction.
Nevertheless, in response to a letter from this court requesting suggestions regarding the finality of the trial court's judgment in this case, Mr. Crockett filed suggestions in support of dismissal of the appeal and a request for sanctions and damages for frivolous appeal. In part, Mr. Crockett alleged that because the underlying judgment in this case has been satisfied, the case is moot and, therefore, the appeal should be dismissed. As suggested by Mr. Crockett, "`[t]he mootness of a controversy is a threshold question in any appellate review of that controversy.'" Two Pershing Square, L.P. v. Boley, 981 S.W.2d 635, 638 (Mo.App.W.D. 1998) (citation omitted). "A case must be dismissed as moot whenever an event occurs that renders a decision unnecessary." Id.
While Mr. Crockett correctly notes that "`[a]s a general rule, when a party voluntarily pays a judgment rendered against him, he may not appeal from that judgment.'" State v. Ethridge, 29 S.W.3d 420, 421 (Mo.App.S.D. 2000) (citation omitted). For example, "`[w]hen the judgment has been paid, the issue is settled and the question is moot.'" Id. (citation omitted). Mr. Crockett fails to note, however, that "[w]hen a defendant pays a judgment after execution or writ of garnishment in aid of execution has issued, courts have generally held that the payment was involuntary" and, therefore, the issue is not moot and the judgment is appealable. Kinser v. Elkadi, 654 S.W.2d 901, 903 (Mo. banc 1983). See also Two Pershing Square, 981 S.W.2d at 638 (payment involuntary when made after execution or writ of garnishment because presumed to be made as result of legal coercion); Countryman v. Seymour R-II Sch. Dist., 823 S.W.2d 515, 519 (Mo.App.S.D. 1992) (payment following execution of garnishment is involuntary and, therefore, appeal is not moot). Therefore, because payment in this case was by garnishment and, thus, involuntarily made, the questions raised by Mr. Polen in this appeal are not moot. Two Pershing Square, 981 S.W.2d at 639. Accordingly, this court has jurisdiction and now considers the merits of Mr. Polen's appeal.
Standard of Review
Review of a court-tried garnishment action is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Brooks, 40 S.W.3d at 412. Therefore, this court will affirm the trial court's judgment "unless there is no evidence to support it, it is against the weight of the evidence or it erroneously declares or applies the law." Id. When the trial court fails to make findings of fact, this court considers "all fact issues to have been found in accordance with the result reached." Id.
Trial Court Erred in Denying Motion to Quash Garnishment
In his first point on appeal, Mr. Polen asserts that the trial court erred in denying his motion to quash garnishment and in failing to order restitution of monies involuntarily taken from him since the expiration of the underlying judgment. Specifically, Mr. Polen claims that the September 13, 1994 judgment expired, under section 516.350.1, on September 13, 2004, because Mr. Crockett failed to revive the judgment and the payments that were garnished from his wages were involuntary payments and, therefore, were not recorded payments sufficient to toll the statute of limitations.
Mr. Crockett asserts that Mr. Polen's points relied on must be stricken because they fail to comply with Rule 84.04(d). While Mr. Polen's points relied on are not a model of compliance with Rule 84.04(d), because this court is able to discern his argument, his claims will be reviewed based upon this court's desire to decide cases on the merits where possible. State v. Vivone, 857 S.W.2d 489, 497 n. 6 (Mo.App.S.D. 1993).
In his second point on appeal, Mr. Polen claims that the trial court erred in denying his motion to quash garnishment because, under section 516.320, there was no written acknowledgement or promise entered into evidence that could have revived the judgment past the ten-year statute of limitations. Based on this court's disposition of Mr. Polen's first point on appeal, his second point need not be addressed.
Under section 516.350.1, "judgments are conclusively presumed paid ten years after they were originally rendered unless a party has revived the judgment or entered a payment upon the record." Pirtle v. Cook, 956 S.W.2d 235, 238 (Mo. banc 1997). Specifically, section 516.350.1 provides:
Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, except for any judgment, order, or decree awarding child support or maintenance or dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage, legal separation or annulment which mandates the making of payments over a period of time or payments in the future, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever. An action to emancipate a child, and any personal service or order rendered thereon, shall not act to revive the support order.
"Once the conclusive presumption arises, the judgment cannot be revived and no suit can be maintained upon it." Pirtle, 956 S.W.2d at 238.
At the hearing on Mr. Polen's second motion to quash, Mr. Crockett's counsel conceded that Mr. Crockett had not filed "a formal order of revival." Nevertheless, Mr. Crockett maintains on appeal that the August 26, 2004 hearing on Mr. Polen's first motion to quash, wherein the "vitality of the judgment" was adjudicated, was a proceeding that was sufficient to revive the judgment. In other words, Mr. Crockett claims that the hearing on Mr. Polen's motion to quash was essentially the functional equivalent of a motion to revive and, therefore, Mr. Crockett timely revived the September 13, 1994 judgment.
A judgment creditor may revive a judgment within ten years by a writ of scire facias. Elliott v. Cockrell, 943 S.W.2d 328, 329 (Mo.App.E.D. 1997) (citing section 511.370 and Rule 74.09(a)). A scire facias proceeding "is not an original action, but is a special proceeding in continuance of and ancillary to the former suit in which the judgment was obtained." Id. In such a proceeding, the "judgment debtor may come into court and show cause why the original judgment should not be revived." Id. The debtor's defenses are limited, however, to either the judgment does not exist or the judgment has been satisfied. Id. at 329-30. An order reviving a judgment "is not a new judgment but merely extends the life of the old judgment and authorizes execution to issue." Id. at 330.
Rule 74.09 states:
(a) When and by Whom. A judgment may be revived by order of the court that entered it pursuant to a motion for revival filed by a judgment creditor within ten years after entry of the judgment or the last prior revival of the judgment.
(b) Order to Show Cause. Upon the filing of a motion of revival of a judgment, an order shall issue to the judgment debtor to show cause on a day certain why such judgment should not be revived. The order to show cause shall be served pursuant to Rule 54 on the judgment debtor, his successors in interest, or his legal representatives.
(c) Judgment of Revival. If the judgment debtor, his successors in interest, or legal representatives fail to appear and show cause why the judgment should not be revived, the court shall enter an order reviving the judgment.
"[T]he only pertinent issues in a scire facias proceeding to revive a judgment are whether the judgment creditor initiated the proceeding within the prescribed time of ten years; whether service, either personal or by publication, was obtained on the judgment debtor; whether the judgment existed; and whether the judgment was satisfied." Id. In this case, while it is true that the August 26, 2004 hearing adjudicated the existence of the judgment and whether the judgment had been satisfied, the evidence regarding these issues was relevant to Mr. Polen's motion to quash garnishment. Therefore, the issue of revival of the judgment was not tried by consent. Thompson v. Thompson, 835 S.W.2d 570, 573 (Mo.App.W.D. 1992) ("The implied consent rule applies only when the evidence presented bears only on a new issue and is not relevant to issues already present in the case.").
In addition, the other relevant issues in a scire facias proceeding were not addressed at the August 26, 2004 hearing. For example, Mr. Crockett, as the judgment creditor, did not initiate the proceeding. Under the plain language of Rule 74.09(a), a motion to revive a judgment must be "filed by a judgment creditor within ten years after entry of the judgment." Mr. Polen, the judgment debtor, is the party that initiated the August 26, 2004 hearing by filing a motion to quash garnishment. As Mr. Crockett's counsel conceded at the hearing, Mr. Crockett did not file a motion to revive at any time, much less within the statutory period of ten years. In addition, because Mr. Crockett did not file a motion to revive, the issue of whether Mr. Polen was properly served with notice of Mr. Crockett's intent to revive the judgment was also not at issue in the August 26, 2004 hearing. Accordingly, Mr. Crockett's argument that the August 26, 2004 hearing on Mr. Polen's motion to quash essentially served as a scire facias proceeding sufficient to revive the judgment is without merit. Consequently, Mr. Polen's argument that Mr. Crockett failed to revive the judgment within ten years is well taken.
As a result of Mr. Crockett's failure to revive the judgment, the only way in which Mr. Crockett's writ of garnishment may be enforced beyond the ten-year statute of limitations is by payment on the judgment within the ten-year period of limitation. Section 516.350.1. Mr. Crockett claims that on various dates from March 29, 2004, until December 20, 2004, the clerk of court filed on the record payments of garnishment checks received from AMR. Mr. Crockett claims that these payments, which were "duly entered upon the record before the expiration of the ten year anniversary of the judgment," were sufficient to toll the statute of limitations and revive the judgment. On the other hand, Mr. Polen argues that because these payments were obtained through garnishment of this wages, they were involuntary payments. Mr. Polen claims that to toll the statute of limitations, the payments must have been voluntarily made. Thus, Mr. Polen concludes that because the payments were not voluntarily made, such payments were ineffective in tolling the statute of limitations and in reviving the judgment.
For purposes of section 516.350, "the term `record' would include `any recordation by the clerk of the court for payments made on the judgment.'" State ex rel. Clatt v. Erickson, 859 S.W.2d 239, 242 (Mo.App.E.D. 1993). Neither party challenges that the clerk of court's recordation of the garnishment checks at issue in this case were not "duly entered upon the record."See Section 516.350.1.
Section 516.350.1 does not expressly require that a payment made on a judgment and duly entered on the record must be voluntarily made in order to toll the statute of limitations. Nevertheless, this court addressed this issue in Eubank v. Eubank, 29 S.W.2d 212 (Mo.App. 1930). In Eubank, this court specifically held that in order for a payment to be effective in tolling the statute of limitations for purposes of reviving a judgment, the payment must be voluntary, or made with the consent of the payor. 29 S.W.2d at 214. In particular, Eubank explained:
In Eubank, the court interpreted section 1341 of the Revised Statutes of Missouri 1919, which was subsequently moved to section 516.350 in 1939. 212 S.W.2d at 214. Section 1341 is, in all relevant respects, the same as section 516.350. Later amendments to section 516.350 relate to periodic payments such as child support and maintenance, which are not applicable in this case. See Section 516.350.2.
It is well established that the mere indorsement of a partial payment on a note, which in fact has not been made, will not, of itself, toll the running of the statute of limitations. The burden is upon the one seeking to uphold the right of action to show that such indorsement or payment was made by, or with the consent of, the payor, or under such circumstances as to warrant the inference that he thereby recognizes the debt, and signifies his willingness to pay it; and the mere entry of a credit by the holder of the note, without the consent of the payor, will be ineffectual to check the operation of the statute. The reason for this rule is obvious and is very well stated in Crow v. Crow, 124 Mo. App. 120, 129, 100 S.W. 1123, 1126, as follows: "A mere indorsement by the holder himself, without the knowledge or consent of the payor, or other proof that the payment was then made, is not admissible if the note would be barred by the statute but for the credit indorsed; otherwise, the holder of a note would have no difficulty in avoiding the bar of the statute."
It is not the indorsement of the credit, but the payment, which operates as a renewal of a promise and removes the bar of the statute; that the party relying on a payment to stop the running of the statute must not only establish that it was made, but that it was made by authority of the defendant, is the rule. The record discloses no proof showing, or tending to show, that defendant ever voluntarily made or authorized any payment to be made on the judgment which plaintiff is endeavoring to enforce. The general rule applicable to this situation is stated in 37 C.J. p. 1146: "A part payment to be effectual to interrupt the statute must be voluntary on account of the debt in suit."
29 S.W.2d at 214 (citations omitted).
The Missouri Supreme Court subsequently cited Eubank approvingly for the rule that in order for a payment to extend the ten-year period within which execution may issue, the payment "must have been made voluntarily. . . ." Mayes v. Mayes, 116 S.W.2d 1, 6 (Mo. 1938) (citing Eubank for rule that payment must be voluntary to toll statute of limitations). In Mayes, the question was whether an alimony and child support award, which was not properly revived, could be collected after ten years had passed based on payments claimed to have been made. 116 S.W.2d at 3. The plaintiff claimed that when the defendant moved to California, she prosecuted the defendant under a California statute. Id. at 6. The defendant was convicted and sentenced to "penal servitude," and after being paroled, the defendant was forced to make contributions toward child support, of which he did for a time. Id. The plaintiff claimed that those payments tolled the statute of limitations. Id. The Court, disagreed, however, finding that the payments made "under such compulsion," and not pursuant to the divorce decree, were insufficient to toll the statute of limitations. Id. See also Boyer v. State ex rel. Stuerke, 851 S.W.2d 802, 805 (Mo.App.W.D. 1993) ( voluntary payments revived payments due for up to ten years prior to the date of payment); Spangler v. Spangler, 831 S.W.2d 256, 260 (Mo.App.W.D. 1992) ( voluntary payments sufficient to toll the statute of limitations).
In Mayes, the court interpreted section 886, RSMo 1929, which was previously section 1341, RSMo 1919, the statute interpreted in Eubank, 29 S.W.2d at 213-14. Section 886 was renumbered in 1939 to its current location, section 516.350.
It should be noted, however, that in finding that the involuntary payments at issue in Mayes were insufficient to toll the statute of limitations, the Supreme Court held that the payment at issue "must have been made voluntarily or under and pursuant to the judgment or decree." Mayes, 116 S.W.2d at 6 (emphasis added). Based on the Court's inclusion of the phrase "under and pursuant to the judgment or decree" and its use of the term "or" rather than "and," it could be argued that the Court set forth an alternate basis for finding a payment sufficient to toll the statute of limitations, that is, when it is made "under and pursuant to the judgment or decree." Id. If the Supreme Court intended that any payment on a judgment could be a basis for tolling the statute of limitations, the reference to voluntary payments would be surplusage. Additionally, the context of the Court's statement indicates the Court did not intend that any payment be a basis for tolling the statute of limitations, negating the requirement that the payment in fact be voluntarily made. Immediately following the Court's holding, the Court stated, "In Eubank v. Eubank, supra, it was in effect so held." Id. As discussed above, Eubank clearly held that in order for a payment to be effective in tolling the statute of limitations for purposes of reviving a judgment, the payment must be voluntary or made with the consent of the payor. 29 S.W.2d at 214. Moreover, the additional language set forth in Mayes, "under and pursuant to the judgment or decree," is merely a restatement of the language of section 516.350.1, which requires that in order for a payment to revive a judgment, the payment must have "been made on such judgment, order or decree, and duly entered upon the record thereof. . . ."
Thus, Mr. Polen correctly asserts that in order to revive the September 13, 1994 judgment beyond the ten-year statute of limitations, in the absence of a timely filed motion to revive, a "voluntary" payment must have been made and duly entered upon the record. Because all of the payments made by Mr. Polen in this case were the result of garnishment of his wages and, therefore, were involuntary payments, no payments were made that tolled the statute of limitations. Kinser, 654 S.W.2d at 903 (payment made after execution or writ of garnishment result of legal coercion and thus involuntary). All payments made after September 13, 2004, were improperly garnished from Mr. Polen because in the absence of revival of the judgment, the September 13, 1994 judgment was "conclusively presumed paid" on that date. Pirtle, 956 S.W.2d at 238.
Nevertheless, Mr. Crockett cites Martin v. Martin, 979 S.W.2d 948 (Mo.App.S.D. 1998), to support his position that payments need not be voluntary to toll the statute of limitations. In Martin, a 1984 judgment awarded Naomi Martin monthly child support from William Martin. 979 S.W.2d at 948. In 1996, Naomi sought to revive the 1984 judgment by filing a motion for revival under Rule 74.09. Id. William objected on the grounds that more than ten years had elapsed and revival was barred. Id. at 949. On July 30, 1986, two payments had been collected from William by garnishment and recorded by the court. Id. at 951. Because Naomi filed her motion for revival on July 23, 1996, the dispositive question was whether those payments were sufficient to toll the statute of limitations. Id. If the payments were sufficient, then Naomi's motion for revival was timely, i.e., within ten years of a duly recorded payment. Id. If, however, the payments were not sufficient to toll the statute of limitations, then Naomi's motion for revival was untimely. Id. The trial court, presumably relying on this court's decision in Spangler, 831 S.W.2d 256, concluded that the two payments were not voluntarily made because William had his wages garnished and, therefore, the payments were not sufficient to toll the statute of limitations. Id. at 952.
In Spangler, a 1972 dissolution decree ordered the father to pay the mother periodic child support. 831 S.W.2d at 258. In 1980, the father made a voluntary payment through the court. In 1989, the father filed a motion to modify and mother filed a cross motion for an increase in child support and an action for contempt based on father's failure to pay arrearages accrued since 1972. Id. at 258-59. After the trial court informed the father that it would hold him in contempt for non-payment and impose a jail sentence, the father paid $750.31 into the court. Id. at 259. Thereafter, on another motion for contempt filed by the mother, the trial court found that the father was in arrearage in the amount of $28,422.59 since the 1972 judgment. Id. On appeal, the father argued that the payments due from 1972 through 1980 were presumed paid and collection was barred by section 516.350. Id. The court disagreed finding that the 1980 voluntary payment made by the father, which he made within the ten-year period prescribed by section 516.350, revived the judgment entered in 1972 and, therefore, all arrearages remained due as determined by the trial court. Id. at 260.
On appeal, Naomi argued that the trial court erred in finding her motion for revival untimely because whether the payments were voluntary or involuntary was irrelevant. Id. Specifically, Naomi argued that:
To find that payments must be voluntary in order to be considered a payment on the record pursuant to statute would likely preclude any child support payments whatsoever by those wishing to escape their obligation. They would simply wait out their time, making no payments, thereby escaping any liability on the judgment, as money taken from them involuntarily would not count as a payment, according to the trial court's reasoning.
Id. The southern district of this court agreed with Naomi's argument finding the difference between whether the payment was voluntary or involuntary "inconsequential." Id. Thus, the southern district reversed the trial court's judgment, which had denied Naomi's motion for revival of the 1984 judgment, and found that Naomi had timely revived the judgment. Id. Martin, however, does not cite any authority for the proposition that it is "inconsequential" whether the payments were made voluntarily or involuntarily for purposes of reviving a judgment. And, in fact, as set forth above, Martin is in conflict with Mayes and Eubank that hold that payments must be voluntary to toll the statute of limitations and revive a judgment. Because this court is bound by the most recent decision of the Missouri Supreme Court, this court disagrees with Martin, as it is contrary to Mayes. Kansas Ass'n of Private Investigators v. Mulvihill, 35 S.W.3d 425, 432 (Mo.App.W.D. 2000). Therefore, all payments made after September 13, 2004, were improperly garnished from Mr. Polen because in the absence of revival of the judgment, the September 13, 1994 judgment was "conclusively presumed paid" on that date. Pirtle, 956 S.W.2d at 238. Accordingly, the trial court's judgment is reversed and remanded with instructions to grant Mr. Polen's motion to quash garnishment after September 13, 2004, and to order that Mr. Polen be reimbursed for all sums garnished after expiration of the judgment.
While Eubank and Mayes are both domestic cases dealing with the payment of child support and alimony, the rule of law regarding tolling the statute of limitations by a voluntary payment set forth in both cases is the general rule applicable to payments made on any judgment. Section 516.350 was not modified until 1982 to make a distinction in tolling the statute of limitations for periodic payments, which is relevant in the context of child support and maintenance payments, and tolling the statute of limitations related to any other type of judgment.
Mr. Crockett's motion for damages for frivolous appeal and motion to strike Mr. Polen's reply brief are denied.
All concur.