Standridge v. Adams

MANFORD, Judge. This appeal is taken from an order overruling a motion to correct a decree of dissolution. The appeal is dismissed. The record in this case reveals the following pertinent events. The marriage of the parties was dissolved on September 24, 1979. In addition to other matters, the decree of dissolution contained the following: “IT IS FURTHER ORDERED, ADJUDGED AND DECREED that respondent be awarded as and for maintenance in gross, a sum not to exceed $8,353.00 which obligation may be satisfied by petitioner, by petitioner and respondent performing the following conditions: (a) Petitioner shall pay the bills due to Montgomery Ward, Sears, Master Charge and Visa, being the debts incurred jointly by the parties during their marriage; however, said payments shall not exceed the sum of 12,253.0o.1 (b) Commencing February 1, 1980 and continuing through January 1,1982 (a period of 24 months commencing February 1, 1980), provided respondent attends any school of her choice on a full time basis during that period of time, for each month in which respondent is in full attendance and does incur tuition expense, petitioner shall reimburse respondent for said tuition expenses; said reimbursement shall be in the amount of $254.17 for each month of full attendance on a full time basis; however, the total amount for which petitioner shall be obligated to reimburse respondent shall not exceed the sum of $6,100.00. If respondent, during the period of February 1, 1980 through (sic) January 1, 1982 fails to attend on a full time basis any school of her choice, petitioner then and in that event shall be relieved of any obligation to reimburse any sums to respondent for tuition for those months in which respondent fails to attend on a full time basis.” [682] On August 7, 1980, respondent filed a verified Motion for Show Cause Order in which she alleged that appellant had not complied with the above portion of the decree ([b] above) and sought the courts order finding appellant in contempt. A hearing was held upon respondent’s motion and the circuit court found respondent had never attended any school. Appellant, in response to the motion, denied failing to comply and also attacked the decree provision charging that it was void and unenforceable under the rule in Sunderwirth v. Williams, 553 S.W.2d 889 (Mo.App.1977). The circuit court, on October 3, 1980, ruled respondent’s motion and held appellant not in contempt and that per the rule in Sunderwirth, supra, provision (b) was void. No appeal followed. On November 24,1980, respondent filed a motion seeking correction of the decree of dissolution. On February 17, 1981 another circuit judge of the 16th Judicial Circuit overruled respondent’s motion to correct the decree and also ruled that provision (b) was not void and that the matter was controlled by the rule in Luedde v. Luedde, 240 Mo.App. 69, 211 S.W.2d 513 (1948) and not Sunderwirth, supra. This appeal followed with appellant contesting the part of the order of February 17, 1981 which voided the previous order of October 3, 1980. Respondent filed, in lieu of a brief, a motion to dismiss the appeal upon the premise appellant was not an aggrieved party within § 512.020 RSMo.1969 and that the original decree, and all orders and judgments thereafter were not final for purposes of appeal. Neither party disputed the applicability of Sunderwirth, supra. As will be observed below, this cause turns upon more recent authority than Sunderwirth. But before making final disposition, some points must be clarified. In the first instance, the original decree, contrary to respondent’s contention, became final 30 days after entry on September 24, 1979. Secondly, respondent’s motion for Show Cause Order was a proceeding in aid of execution from which an appeal could lie. Thirdly, in its order of February 17, 1981 the circuit court correctly overruled respondent’s motion to correct the decree but was without jurisdiction to void the previous order of October 3, 1980. The circuit court further erred in ruling Luedde and not Sunderwirth controlled. Fourth, except as will be discussed below appellant was an aggrieved party within that portion of § 512.020 supra which provides for an appeal “... from any special order after final judgment in the cause ..." The posture of this case changed, as did the respective position of the parties, with the ruling in Bryson v. Bryson, 624 S.W.2d 92 (Mo.App.1981). Bryson ruled that a separation agreement incorporated within a decree is enforceable even though facially uncertain in amount. It might be argued at this posture that Bryson is distinguishable because of the existence of a written separation agreement. That point, however, has been ruled in the most recent decision of our state Supreme Court in Payne v. Payne, Mo., 635 S.W.2d 18 (1982) wherein the court adopted the rule in Bry-son and extended that rule to apply to decrees and judgment awards in cases not involving written separation agreements. In Payne, our state Supreme Court ruled that Brolinson v. Brolinson, 564 S.W.2d 911 (Mo.App.1978), which approved and adopted Sunderwirth supra, was not to be followed to the extent that Brolinson conflicts with Bryson or Payne. This court is bound to follow the latest decision of our state Supreme Court upon any issue. Payne thus removes any doubt as to appellant’s status as an aggrieved party and hence this appeal must be dismissed. As to the status, validity and enforceability of the original judgment and decree herein and as to the appropriate procedures to be followed by the parties, the circuit court and the parties are referred to Payne, supra. Appeal dismissed. KENNEDY, J., concurs. CLARK, J. concurs in separate concurring opinion. Footnotes [1] No dispute is presented regarding provision (a) and same is considered moot.