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Roberts v. Roberts

Court of Appeals of Missouri, Eastern District, Third Division

June 28, 2019

KIMBERLY LYNN ROBERTS, Petitioner/Appellant,

          Appeal from the Circuit Court of Lincoln County Honorable Gregory K. Allsberry

          SHERRI B. SULLIVAN, P.J.


         Kimberly Lynn Roberts (Mother) appeals from the trial court's order of October 28, 2015, granting James Christopher Roberts's (Father) Motion to Set Aside Default Judgment. Because the appeal of the trial court's order was untimely, we dismiss Point I for lack of jurisdiction. Mother also appeals the trial court's June 9, 2017 Judgment granting Father's motion for unjust enrichment and awarding him $3, 777 for overpayment of child support. We reverse and remand.

         Factual and Procedural Background

         Mother and Father were married on April 12, 2002. They separated on October 30, 2014, and Mother filed her petition for dissolution on February 9, 2015. In addition to her petition, Mother filed a motion for temporary child support and attorney's fees, which requested child support retroactively to October 30, 2014. Father was served with the petition on March 3, 2015.

          Mother filed a Notice of Hearing on April 7, 2015, with the hearing on her petition set for May 6, 2015. Father did not file an answer to the petition and did not appear for the hearing. The court entered a default judgment on May 6, 2015. The default judgment ordered Father to pay $671 per month in child support and granted Mother's request for retroactive child support beginning November 1, 2014.

         Father began paying child support in June 2015. For the month of June, Father paid $335.50, half of the ordered support. Father paid $671 for child support in July-October 2015. Father did not pay any of the child support ordered retroactively.

         On September 28, 2015, Father filed a motion to set aside the default judgment of May 6, 2015. A hearing was held on Father's motion on October 27, 2015. The trial court entered an order granting Father's motion to set aside the default judgment on October 28, 2015. A termination of withholding order was processed on October 29, 2015, and Father did not pay any child support in November-December 2015.

         On January 26, 2016, a consent pendente lite order (PDL order) was entered. The PDL order stated Father was to pay Mother $440 per month for child support "as of today." However, Father did not pay child support in January 2016, and paid only $220 for February 2016. Beginning in March 2016, Father began abiding by the PDL order and paying Mother $440 per month for child support.

         A settlement agreement was reached between Mother and Father in early November 2016 and was entered in the record on November 7, 2016. According to the settlement agreement, Father would pay Mother $251 per month for child support. The Judgment, Order and Decree of Dissolution of Marriage was entered on January 29, 2017. In the Judgment, the trial court ordered Father to pay Mother $251 per month in child support for the two children, effective November 7, 2016. Nothing in the order indicated Father was to be credited for any previous child support payments.

         There were no after-trial motions filed by Father. Rather, on March 15, 2017, Father filed a Motion for Contempt and Unjust Enrichment. In his motion, Father argued Mother was in contempt for failing to "sign and submit the settlement documents to the Court within the fifteen days from the day it was spread on the record, as ordered by the Court." Father argued Mother was unjustly enriched because he had involuntarily overpaid child support and Mother's acceptance and retention of the additional child support was unjust.

         Father claimed there were two periods in which he involuntarily overpaid child support. First, Father claimed he overpaid $3, 019.50 for the payments he made during the time the initial judgment was in effect due to his default because he was able to successfully have the default judgment set aside. Second, Father claimed he overpaid child support from November 2017-January 2018 because the money he paid during this time was the amount he was ordered to pay under the PDL order, which was more than the amount the final judgment required he pay.

         On May 17, 2017, the trial court heard arguments from Mother and Father and took the matter under advisement. On June 13, 2017, the trial court entered a judgment finding Mother was not in contempt, but had been unjustly enriched. Based on a calculation provided to the trial court from a court clerk, the trial court ordered Mother to pay Father $3, 777 as a result of her retention of Father's child support payments. In its judgment, the trial court stated,

In this case, Mother might be faulted for the delay in entry of the January 29, 2017 judgment, but she certainly is not at fault with respect to the first overpayment. The precise issue, however, is not whether Mother is at fault for the overpayment, but rather, whether it was just and equitable that she be allowed to retain the overpayments. This court finds that it is not.

         The trial court did not provide any reasoning as to why it was not just and equitable for Mother to ...

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