Zweifel v. Ahland

CROW, Judge,

concurring.

I concur in the result reached by the principal opinion, but deem it necessary to comment on appellant’s second assignment of error. Appellant, henceforth referred to as “the mother,” maintains that inasmuch as the 1981 decree of dissolution of marriage provided that no child support was awarded respondent (“the father”), the trial court, in the 1984 modification proceeding brought by the father, had no “jurisdiction” to order the mother to pay child support.

The mother bases her hypothesis on cases decided prior to January 1, 1974, holding that a divorce decree entered without making any mention of alimony cannot thereafter be amended or modified so as to provide an allowance of alimony.1

The statutes authorizing termination of marriages by divorce were repealed by Laws 1973, pp. 470-79, H.B. No. 315, effective January 1, 1974, and a new procedure for the termination of marriages by “a decree of dissolution of marriage” was cre*663ated by the same legislation. The statutes governing dissolution of marriage are presently codified as §§ 452.300-.420, RSMo 1978, as amended.

Section 452.325.6, RSMo 1978, provides, in pertinent part:

“Except for terms concerning the support ... of children, the decree [of dissolution of marriage] may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.”

Section 452.340, RSMo 1978, provides, in pertinent part:

“In a proceeding for ... dissolution of marriage ... or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for his support....”

Section 452.370.1, RSMo Cum.Supp.1983, provides, in pertinent part:

“Except as otherwise provided in subsection 6 of section 452.325, the provisions of any decree respecting ... support may be modified only as to installments accruing subsequent to the motion for modification and only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable....”

The mother seizes upon the language in § 452.370.1, above, that the provisions of any decree respecting support may be modified only as to installments accruing subsequent to the motion for modification. She argues that if no child support is granted to the custodial parent in the decree of dissolution, there are no future installments that will accrue. Consequently, says the mother, the intent of the General Assembly must have been to prevent a later award of child support where none was awarded in the decree of dissolution. In the mother’s words: “With no installments existing, the [trial] court was entirely without jurisdiction to create a child support order by modification.”

The mother concedes she has found no case decided since January 1, 1974, in support of, or contrary to, her position. We have likewise found no case since that date deciding the issue.

We do not, however, find the mother’s theory persuasive. In our view, the purpose of the proviso in § 452.370.1 that the provisions of a decree respecting support may be modified only as to installments accruing subsequent to the motion for modification is merely to bar a court, in a modification proceeding, from ordering an increase or a decrease in the amount of any installment that became due prior to the filing of the motion to modify. That is the teaching of Bopp v. Bopp, 671 S.W.2d 348, 351[9] (Mo.App.1984), and State ex rel. Williams v. Williams, 647 S.W.2d 590, 593[5] (Mo.App.1983). We find nothing in § 452.370.1 manifesting a legislative intent that a parent who is not ordered to pay child support in a decree of dissolution of marriage is, by reason thereof, forever immune from the obligation of supporting children of the marriage.

Embracing the rationale espoused by the mother in the instant case could produce bizarre results. Suppose, for example, a decree of dissolution awarded custody of a child to one parent and provided (as did the decree here) that the custodial parent was to receive no child support from the noncustodial parent. Later, the noncustodial parent, in a motion to modify, seeks custody of the child, together with child support. The prayer for change of custody is granted. Could the original custodian successfully argue that because the decree of dissolution contained no order requiring payment of child support by either parent, none could be ordered of him in the modification proceeding?

To state the question is to answer it. Of course not.

We recognize, of course, that the case before us differs from the hypothetical we have posed, in that here, custody of the child remains with the parent originally awarded custody by the dissolution decree. We fail to see, however, why that should make a difference.

*664While not identical to the case before us, there is a Missouri case decided prior to January 1, 1974, that is helpful by analogy. In Roberts v. Roberts, 292 S.W.2d 596 (Mo.App.1956), a former wife filed a motion to modify a divorce decree entered in 1950. In her motion, the former wife alleged that the divorce decree made no provision for the support of a child of the marriage. The motion prayed that the decree be modified by ordering her ex-husband to pay child support. The trial court ordered the decree modified to require the ex-husband to pay child support of $40 per month.

On appeal, the ex-husband argued that his ex-wife’s motion to modify failed to state a cause of action, in that it pleaded no change of conditions or circumstances since entry of the divorce decree.

Affirming the judgment, the appellate court pointed out that while, as a general proposition, a motion to modify must plead a change of condition in order to state a claim for which relief can be granted, that was not true in Roberts, as the child support issue had “never been the subject of judicial pronouncement.” Because there had been no adjudication of the child support issue in the divorce decree, the doctrine of res judicata was inapplicable to that issue, hence there was no need for the ex-wife, in her motion, to allege that circumstances had changed since the divorce. The ex-wife was not seeking to alter a provision in the divorce decree pertaining to child support, but was instead seeking a determination of an issue not theretofore decided.

Pertinent to the mother’s contention in the instant case, Roberts said:

“The obligation of the father to support his child is something which was born with the child. It is not a matter of agreement and the parents cannot between themselves contract away the right of the child to look to its parents for support.” Id. at 599[7].

The mother in the case before us attempts to distinguish Roberts on the ground that the decree there was silent as to child support, whereas the decree in the instant case specifically stated no child support was awarded to the father.

We find the difference immaterial. In both cases, no child support was awarded in the original decree, hence there were no “installments” of child support accruing under either decree. That did not prevent affirmance of the modification in Roberts, and it does not prevent affirmance of the modification here.

The mother’s contention, albeit ingenious, is without merit.

. Smith v. Smith, 350 Mo. 104, 164 S.W.2d 921, 924[8, 9] (1942); Carrell v. Carrell, 503 S.W.2d 48, 51[7] (Mo.App.1973).