Family Law

Editor:
John W. Dennis, Jr., Esquire

Tort claim brought against ex-husband three years after divorce over same facts barred as collateral attack on dissolution judgment. Reimer v. Hayes, No. 73603 (Mo. App. W.D., April 24, 2012), Welsh, J.

The parties’ marriage was dissolved in April 2006. At the hearing the previous month, the Husband testified that his annual earnings were about $75,000 for purposes of child support. His 2006 W-2 wages from his employer, Lehigh Press, were actually over one million dollars. The Wife found out about the income disparity and threatened to have the judgment set aside. Instead, in June 2007, she accepted $100,000 for “a distribution to equalize the division of marital assets,” and she signed a release of Husband from any existing claims for undistributed property and Lehigh Press for any existing claim.

In August 2010, Wife sued Husband and Lehigh Press in tort for damages alleging fraud and civil conspiracy for misrepresenting Husband’s income, which resulted in an award of child support far less than she should have received. The Husband filed for summary dismissal on numerous grounds – estoppel, waiver, laches, res judicata, collateral estoppel, failure to assert compulsory counterclaims in prior litigation, settlement, release, and accord and satisfaction.

The Wife acknowledged the release of her claim for undistributed marital property but denied the release of her claim in tort. The trial court dismissed her petition and this appeal followed.

Held: Affirmed.


“…[Wife’s] tort claim is an improper collateral attack on the dissolution judgment and, therefore, barred.” In essence, same facts, same events, different theory of relief – impermissible collateral attack.

“Any grievance (Wife) had against (Husband), regarding child support awarded in the dissolution, should have been addressed with the dissolution court, not in a collateral attack against the dissolution judgment via a tort action. ‘Claim preclusion [ ] precludes a litigant from bringing, in a subsequent lawsuit, claims that should have been brought in the first suit.’ Dahn v. Dahn, 346 S.W.3d 325, 331 (Mo. App. 2011). (quoting Kesterson v. State Farm Fire & Casualty Company, 242 S.W.3d 712, 715 (Mo. banc 2008)). If a subsequent claim arises out of the same account, contract or transaction, the claim is barred by the original judgment. Id. It is incumbent on the parties to exercise reasonable diligence and bring all issues before the court that belong to the subject matter of their litigation. Id.

Editor’s Note:
Of great interest to practitioners when there are tort claims attendant to a dissolution action is this dicta:

“To the extent that (Wife) desired relief beyond that available in a motion to set aside the dissolution judgment, she was entitled to join her tort claims as a separate cause of action. Dahn v. Dahn, Supra at p. 333. Nevertheless, we note that not all tort actions are necessarily disposed of in the dissolution proceeding. Because of the limited connection between personal injury claims and the issues in a dissolution action, personal injury claims may not be barred as a collateral attack or by res judicata. Dahn at p. 336. However, even in such cases, the prior dissolution decree may have a ‘collateral estoppel effect in the later suit, to the extent specific overlapping issues exist between the dissolution and tort proceedings; moreover, issues may arise as to whether a prior dissolution decree resulted in compensation, in whole or in part, for the injured spouse’s personal injuries.’ Id. at p. 336 n. 7.”


Judgment terminating parental rights must set forth specific grounds for that determination. In the Interest of N.A.U., No. 97152 (Mo. App. E.D., March 20, 2012), Clayton, J.

In this action to terminate the parental rights of the Mother of N.A.U., there is a raft of evidence of personal problems and neglect. However, the trial court’s findings were lacking in sufficient specificity. Mother appealed.

Held: Reversed. “
The trial court was required to find at least one of the statutory grounds for termination by clear, cogent, and convincing evidence to terminate Mother’s parental rights. In re: M.A., 185 S.W.3d 256, 261 (Mo. App. W.D. 2006). The court must first find a statutory ground has been proven, and then it can proceed to the second step, which is a determination whether the termination is in the best interests of the child. Id.

Here the trial court only made specific findings as to whether termination was in the best interests of the child. “The trial court’s failure to specify upon what grounds it was basing its termination of Mother’s parental rights, and its failure to make any findings concerning the evidence supporting any such grounds constituted…” reversible error.