Starrett v. Starrett ( 2000 )

JAMES R. DOWD, Judge,

concurring.

I concur with the majority’s conclusion that Section 516.350 prevents the enforcement of the judgment in this case. The statute clearly requires that payments must be made within ten years of the entry of judgment and must be made “upon the record” if the judgment is to be revived thereafter. While the result in this case may not have been foreseen at the time the statute was written, it is nonetheless patently unjust. Both Husband and Wife stipulated to the fact that Husband made payments to Wife according to the decree every month since 1986. Because those payments were not made through the court, Husband should not be allowed to avoid the remaining payments owed on the judgment. Our holding today, while legally correct, is an example of how Section 516.350 can be used by a party to obtain inequitable results.

The General Assembly should remove from Section 516.350 the requirement that payments must be made “upon the record.” The question of payment would then become a question of fact. When a party cannot prove that he or she received a payment on the judgment within ten years after it was rendered, either on or off the record, then, and only then, should the law bar recovery. The statute, as presently written, allows parties to make payments “off the record” for ten years, cease payment, at which point Section 516.350 effectively voids the remainder of the obligation imposed by the judgment or decree.

This statute should also be re-examined because of present realities in dissolution cases and the extended time frames that many decrees contemplate prior to full satisfaction. Often obligations are reduced to judgment but do not even become due and payable during the entire ten years permitted for revival. See Hanff v. Hanff, 987 S.W.2d 352 (Mo.App. E.D.1998). For instance, life insurance benefits and pensions are often included in property settlements, yet are, by their nature, ongoing and payment may not begin during the ten-year period following judgment. Section 516.350 expressly excludes child support and maintenance judgments from its purview, presumably because they normally extend for an indeterminate period of time, often more than ten years. Judgments involving pensions, life insurance and other like property often require payments over a period of time yet are not currently excluded in Section 516.350. In Hanff v. Hanff, this writer observed that Section 316.350 created a “bright line test” for the revival of judgments. I question now, as I did then, the value of such a test so devoid of justice in its application. The majority displays a disciplined intellectual honesty about what the statute demands and in that respect I concur.