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Noble v. Noble

Court of Appeals of Missouri, Western District, Second Division

March 10, 2015

RICHARD W. NOBLE, Respondent,
v.
LINDA L. NOBLE, Appellant

Page 121

Appeal from the Circuit Court of Platte County, Missouri. The Honorable Gerald D. McBeth, Judge.

Scott L. Campbell Platte City, MO, Attorney for Respondent Richard W. Noble.

Robert H. Shaw Platte City, MO, Attorney for Respondents Arn, LLC, et al.

Louis J. Wade Kansas City, MO, Attorney for Appellant Linda L. Noble.

Karen King Mitchell, Judge. Anthony Rex Gabbert, Presiding Judge, and Joseph M. Ellis, Judge, concur.

OPINION

Page 122

Karen King Mitchell, Judge

Linda L. Noble (Wife) appeals the trial court's judgment, which quashed several garnishments Wife sought in aid of executing a monetary judgment against Richard W. Noble (Husband) and awarded Husband attorney's fees in the amount of $2,500. Because the trial court's basis for granting the motion to quash was erroneous and there is no alternative basis for affirming, we reverse its ruling as to both the motion to quash and the award of attorney's fees.

Page 123

Factual and Procedural Background

On July 2, 2010, the trial court issued its judgment dissolving the marriage between Husband and Wife. In its judgment, the court denied Wife's request for maintenance on the basis that Wife was " capable of supporting herself through . . . employment." In its recitals, the court stated: " [Wife] should not be awarded maintenance as she is not entitled to same and . . . [Husband] will receive and be credited with the maintenance he has paid to [Wife] during the pendency of this action." [1] In the decretal portion of the judgment, the court ordered " [t]hat Judgment is granted in favor of [Wife] and against [Husband] in the sum of $63,807 and execution on said Judgment shall be stayed for 60 days." The $63,807 figure was reached by combining a $36,307 equalization payment with a $27,500 payment compensating Wife for her share of marital property used by Husband.

Wife appealed the judgment to this court, arguing--among other things--that the court erred in not awarding her maintenance. We rejected Wife's claim and affirmed the dissolution judgment in a per curiam order with an accompanying memorandum. Noble v. Noble, 362 S.W.3d 70 (Mo. App. W.D. 2012).

On February 7, 2013, Wife issued a demand letter to Husband, seeking payment of the $63,807 judgment, less $6,699.54 that Husband had paid on the home mortgage after the dissolution, which the parties agreed would operate as a credit against the judgment amount. Wife's demand also sought interest on the remaining balance of $57,107.46 in the amount of $14.08 per day (the equivalent of 9 percent per annum on $57,107.46) beginning July 2, 2010.[2]

Husband refused Wife's demand, arguing that the judgment provided him with a credit for the $46,000 he had paid in pre-trial maintenance and that he had already paid the balance remaining from the $63,807 amount after factoring in the mortgage payment and pre-trial maintenance credits.[3]

As a result of the dispute, Wife filed a " Motion to Determine Amount Due Under the Court's 'Judgment for Dissolution of Marriage,' to Enforce Payment of Said Amount, and for Attorney's Fees." Wife laid out the dispute regarding the amount due under the judgment and suggested

Page 124

that Husband's assertion that he was entitled to a credit for pre-trial maintenance was inaccurate because the judgment denied Husband's motion to terminate or modify temporary pre-trial maintenance. Wife relied upon an email from the trial court to the attorneys before the dissolution judgment was entered, wherein the court outlined the anticipated judgment and stated: " No return of any pretrial Maintenance." Wife also argued that if the court had intended to award Husband a credit, it would have done so in the decretal portion of the judgment, which it did not do.

Husband responded to Wife's motion, arguing that Wife's motion was nothing more than an attempt to modify the dissolution judgment denying maintenance to Wife. Husband argued that the court's determination that Wife was not entitled to any maintenance was directed at both pre-trial and future maintenance. Based upon this interpretation, coupled with Wife's challenge on appeal to the denial of maintenance, Husband argued that this issue had been finally settled.

The court held a hearing on Wife's motion, and at that hearing, Husband argued that the court lacked jurisdiction to rule on Wife's motion.[4] Husband's theory was that ruling on Wife's motion would constitute an " advisory opinion," which the court was not permitted to make. Though not clear from the record, it seems that the basis for Husband's argument was that Wife had not sought execution on the judgment at the time she filed her Motion to Determine and, therefore, any ruling by the court on the motion would be premature.

Apparently in response, following the hearing, Wife filed eighteen writs of execution and two motions for charging orders, seeking to garnish Husband's wages and other property in the hands of various business entities she believed him to be involved with. Each of the garnishments claimed an unpaid amount due of $63,807. The record does not reflect any ruling by the trial court on the motions for charging orders. Of the eighteen garnishments filed, only one was purportedly served; the remaining seventeen were either returned non-est or withdrawn. As to the single garnishment served, the registered agent filed an answer to the accompanying interrogatories indicating that it could " find no record of the entity being listed with the state authority."

After the writs of execution were issued, eight of the garnishees[5] jointly filed a " Petition to Stay, Quash or Hold in Abeyance [Wife's] Requests for Execution or Garnishments . . . Pending the Court's Ruling on [Wife's] Motion to Determine Amount Due Under the Court's 'Judgment for Dissolution of Marriage,' to Enforce Payment of Said Amount, and for Attorney's Fees." [6] Garnishees argued that there could be no execution because the underlying judgment was uncertain, as evidenced by Wife's pending Motion to Determine. Garnishees further argued ...


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