Sunday, November 20, 2005

Case Law Development: Garnishment of Debts to Collect Child Support Arrearages

A Missouri couple provide us a fine example of the uses and limits of garnishment as a tool to collect child support.  When Husband and Wife divorced, the divorce decree awarded the marital house to Wife, and the sum of $ 18,500.00 to Husband to be a judgment and a lien against the house with interest at nine percent per year. The execution of the judgment and payment of the interest was to be stayed for a period of eleven years from the date of the decree; or until the youngest living child attained age eighteen, married or otherwise became emancipated; or until Wife remarried, whichever event occurred first. 

Husband did not pay his child support and Wife obtained a judgment against him of over $14,000. When Husband paid no money, Wife garnished his checking account. The couple then executed an agreement that Husband would pay an additional $ 300.00 per month toward the amount he owed Wife, and she would release the garnishment on his checking account. Husband began to make payments toward his arrearages.

Wife then began the process of refinancing the marital house. When the refinancing was completed, the lender paid a title company $ 18,500.00 to satisfy the judgment lien against the property given to Husband by the original divorce decree. Wife then began an action to garnish the funds being held by the title company to satisfy the remaining arrearages. Husband moved to quash the garnish.  The trial court denied the motion and the funds were distributed.

Husband argued that, under the doctrine of waiver by acquiescence,  Wife had no claim to immediate recovery of the arrearages because of her agreement to remove the prior garnishment.  The Missouri Court of Appeals rejected this argument, holding that "Without more, acceptance of an amount less than owed or a delay in demanding child support payments does not rise to the level of waiver by acquiescence."  Because the couple's agreement releasing the prior garnishment did not prohibit any future garnishments, nor did it waive Wife's right to demand the full outstanding amount due at any time, the court held that Wife retained her right to enforce the full amount of the judgment.

However, the Court did agree with Husband that the garnishment was improper because execution of a garnishment may not be had on a debt not yet due. Since Husband had no right to demand payment from Wife before one of the three conditions of the dissolution decree occurred, the court held that the trial court should have granted Husband's motion to quash the garnishment.

Murray v. Murray, 2005 Mo. App. LEXIS 1674 (November 15, 2005)
Opinion on the web at http://www.courts.mo.gov/courts/pubopinions.nsf/6c38d75d12b7d96c8625661f004bc89e/417794deaf9e6c7e862570b50069bd71?OpenDocument (Last visited November 17, 2005 bgf).

http://lawprofessors.typepad.com/family_law/2005/11/case_law_develo_24.html

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