State Ex Rel. Osborne v. Goeke

RENDLEN, Judge,

concurring in part and dissenting in part.

For the reasons following, I respectfully dissent.

This case had its origins in Dupage County, Illinois, when William Adams (William) and Carol Adams (Carol) were divorced, July 17, 1980. Their two children are now ages 14 and 17 respectively. Sometime following the divorce, William moved to Missouri, where he is currently resident, but continued to pay amounts due under the decree of divorce for the support of his children until his former wife moved to Michigan. It is alleged in William’s cross petition to Carol’s URESA action that she did so without authority of the Illinois Court and without William’s consent, and “failed and refused to disclose her whereabouts or the whereabouts of the minor children.” The cross-petition further alleges that Carol has without good cause failed to provide visitation or temporary custody pursuant to the court’s order of July 17, 1980. These allegations of the cross-petition are taken as true on appellate review. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). Notwithstanding having deprived her former husband of his rights of visitation and temporary custody, Carol filed a petition in the Circuit Court of St. Louis County, which, as described by the majority herein, “sought to enforce [William’s] child support obligation, pursuant to the parties’ dissolution decree from the State of Illinois.” Facing this proceeding, William filed answer and the previously referenced cross-petition seeking abatement of child support payments under the Illinois decree.1

Carol moved to dismiss William’s cross petition and the Circuit Court properly, in my view, denied that motion. Similarly, *674the Court of Appeals, Eastern District, refused to require the Circuit Judge by prohibition to dismiss the cross petition. I submit this is not a suitable case for prohibition for it appears there is no absence of jurisdiction, nor acts in excess of jurisdiction by the trial court. However, this Court issued its preliminary order and now, by its writ absolute, mandates a dismissal of the husband’s cross-petition in its entirety, effectively stripping the husband of his rights under the URESA statute to raise the defense of abatement and any defense he may have to the former wife’s petition.

The majority mistakenly states it is the purpose of the Uniform Reciprocal Enforcement of Support law to “supplant inadequate laws concerning the enforcement duty of support ...” To the contrary, the statute, § 454.030, states with specificity that “the remedies herein provided are in addition to and not in substitution for any other remedies,” this is but one of several misreadings by the majority.

As noted above, Carol’s petition sought enforcement of the dissolution decree from the State of Illinois. She is asking that the Illinois decree be considered by the Missouri Court and that her rights, as well as those of her husband, be determined. In short, she invokes the juris of the Circuit Court of St. Louis County to interpret the terms of a foreign decree. In that regard, § 454.200, anticipating that in such cases a hearing will result, provides that, “upon the request of either party [the Court] shall continue the hearing to permit evidence relative to the duty of support to be introduced by either party by deposition or by appearing in person before the Court ...” If, as here, the action stems from an order of support issued by another court, “a certified copy of the order shall be received as evidence of the duty of support, subject only to any defenses available to an obli-gor with respect to ... a defendant in an action ... to enforce a foreign money judgement.” § 454.200.2 (emphasis added). Similarly, under a § 454.300 type action, § 454.330 provides, “[T]he obligor may assert any defense available to a defendant in an action on a foreign judgment ...” Defendant claims in Count III of his cross-petition that there has been an abatement of his obligation to pay. This defense, available to him under the cited statutes, requires an examination of the Illinois decree, evidence as to performance thereunder by each of the parties, and an interpretation of the decree, the facts and the law to determine the ultimate issues involved. The trial judge recognized the availability of such defense and accordingly denied Carol’s motion to dismiss. However, the majority today has directed the trial judge to strike such defenses and, in so doing, effectively denies the availability of abatement to this obligor. By way of example, let us assume the evidence disclosed the children are deceased; most certainly, the duty to support would cease and would be so ordered by the court in this action. Similarly, would not payment by the husband be an available defense? By the same token, if, when interpreting the Illinois decree, the court discerns evidence of the wife’s conduct vio-lative of the decree, this might well impact the obligations of the parties relative to support under the decree. Further, if the evidence discloses the decree expressly suspended the husband’s duty to pay if the children were removed from the Illinois court’s jurisdiction without court authority, would not the opportunity to prove such facts be available to the husband? However, in argument, the attorneys for Carol urged that the only item for consideration by the trial court was the language of the decree awarding payments by installments and, from this argument, it would seem that that narrow fact should be examined by the court. The majority, apparently smitten by that argument, has effectively stripped William of his possible defenses leaving the trial court only with Carol’s petition and the language of the decree on which to make preordained arithmetic calculations. If a hearing is permitted, as it should be, and the scope of that proceeding is limited to the bare allegations of plaintiff’s petition, the defendant’s rights to legitimate defenses will have been effectively destroyed. If, on the other hand, the majority opinion could be modified so as not to foreclose further pleading by the *675husband and proof of such defenses available to him under § 454.200.2 and make this unmistakably clear, the parties would be better served, but from the present posture of the majority, I must respectfully dissent.

. In addition to the defense of abatement, defendant sought by other counts in his cross-petition to (I) register the Illinois dissolution decree and (II) to modify the Illinois decree regarding the custody of the children. The principal focus of the majority opinion concerns the second count of William’s cross-petition seeking to modify the Illinois decree and though I submit appeal would provide an adequate remedy and that prohibition seems inappropriate, I have no quarrel with the rationale invoked as to Counts I and II of the cross-petition.