John Beck, Respondent v. Ann Fleming, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: John Beck, Respondent v. Ann Fleming, Appellant. Case Number: SC86568 Handdown Date: 06/14/2005 Appeal From: Circuit Court of St. Louis County, Hon. Joseph A. Goeke, III Counsel for Appellant: Maia Brodie and Aimee M. Ruder Counsel for Respondent: Daniel R. Sokol and Sanford J. Boxerman Opinion Summary: Ann Fleming and John Beck dissolved their marriage in June 1988. The dissolution decree provided that Fleming was entitled to 12.5 percent of any net profit realized from the exercise of certain stock options Beck had received as a benefit from his employment. In December 2001, Fleming moved to enforce the decree, alleging Beck failed to pay her the full amount of the net profit he realized from three transactions exercising his options. The court granted Beck's motion to dismiss, finding that a conclusive presumption of payment existed under the 1999 version of section 516.350, RSMo. Fleming appeals. AFFIRMED. Court en banc holds: Fleming did not revive the judgment awarding profits from the stock options within the 10-year period following the June 1988 dissolution decree. A plain reading of section 516.350 provides that judgments, not excluded or revived, conclusively shall be presumed paid and satisfied 10 years after the date of the judgment. No version of the statute requires that an adjudication take place to establish that a payment not excluded presumably has been paid after 10 years. When the original dissolution decree was entered in 1988, there was no statutory exception to the presumption of payment of the award after 10 years passed from the date of the original judgment, unless Fleming had filed a timely motion to revive the judgment. Once 10 years passed, Beck acquired a substantive right to be free from suit with regard to those portions of the dissolution decree that were presumed paid, and the 2001 amendments to section

516.350 do not apply retroactively to strip away that substantive right. Accordingly, pursuant to the pre-2001 version of section 516.350, the profits were presumed paid. Citation: Opinion Author: Ronnie L. White, Chief Justice Opinion Vote: AFFIRMED. Wolff, Stith Price, Teitelman and Limbaugh, JJ., and Gillis, Sp.J. concur. Russell, J., not participating. Opinion: I. Ann Fleming (Appellant) appeals from the dismissal of a motion to enforce her dissolution decree alleging that her former husband, John Beck (Respondent), had failed to pay her the correct amount of profits accrued from the exercise of stock options that had been allocated to her in the decree. The circuit court determined that the judgment of dissolution as to those specific payments was presumed paid pursuant to the applicable version of section 516.350. This Court has jurisdiction, Mo. Const. art. V, sec. 10. The judgment is affirmed. II. The parties dissolved their marriage on June 24, 1988. The dissolution decree included a provision entitling Appellant to 12.5% of any net profit realized from the exercise of certain stock options that Respondent had received as a benefit from his employment. Respondent retained the exclusive right to choose if and when to exercise the options, and he had made payments to Appellant on options exercised on February 15, 1995, January 7, 2000, and July 19, 2001.(FN1) On December 7, 2001, Appellant filed a motion to enforce the decree alleging that Respondent had "exercised, purchased and sold all of the stock options granted to him . . . however he has failed to pay to [Appellant] the full amount of the net profit realized from said transactions." Respondent filed a motion to dismiss, which the trial court granted finding that a conclusive presumption of payment existed by operation of the 1999 version of section 516.350. III. This Court must affirm the dismissal if it can be sustained on any ground sup ported by the motion to dismiss.(FN2) The case is not reviewed on the merits, but rather a determination is made as to if Appellant's pleadings were sufficient to withstand a motion to dismiss. (FN3) The case turns on which version of section 516.350 applies in relation to the stock op tions that Respondent received

as an employment benefit. The precursor to section 516.350 was passed in 1909. The statute was amended or revised in 1919, 1929, 1982, 1999, and 2001. In 1999, the legislature added subsection 3 to the statute, leaving sub sections 1 and 2 intact from the 1982 revisions. The 1999 version of section 516.350 provided:

1. Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or

country, except for any judgment, order, or decree awarding child support or maintenance which mandates the making of payments over a period of time, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclu sively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.

1. In any judgment, order, or decree awarding child support or maintenance, each periodic payment shall be

presumed paid and satisfied after the expira tion of ten years from the date that periodic payment is due, unless the judg ment has been otherwise revived as set out in subsection 1 of this section. This subsection shall take effect as to all such judgments, orders, or decrees which have not been presumed paid pursuant to subsection 1 of this section as of August 31, 1982.

1. In any judgment, order or decree awarding child support or maintenance, payment duly entered on the record as

provided in subsection 1 of this section shall include recording of payments or credits in the automated child support system created pursuant to chapter 454, RSMo, by the division of child sup port enforcement or payment center pursuant to chapter 454, RSMo. In 2001, the legislature expanded the exception provided in subsection 1 for decrees awarding child support and maintenance to also include judgments "dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage." The legislature also added a new subsection 3 and designated the former subsection 3 as being subsection 4. The newly added subsection 3 provides: In any judgment, order, or decree dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage, le gal separation or annulment, each periodic payment shall be presumed paid and satisfied after the expiration of ten years from the date that periodic pa yment is due, unless the judgment has

been otherwise revived as set out in sub section 1 of this section. This subsection shall take effect as to all such judgments, orders, or decrees which have not been presumed paid pursuant to subsection 1 of this section as of August 28, 2001. Appellant claims the trial court erred by failing to apply the new exceptions adopted in the 2001 version of section 516.350 regarding dissolution decrees dividing employee benefits: (1) because the judgment had not been adjudicated to have lapsed; (2) because of the distinctive nature of periodic and future payments; and (3) because failure to apply the 2001 version of this remedial statute would constitute a deprivation of due process. Respondent argues that the 2001 version of section 516.350 does not apply and that a conclusive presumption of payment attached on June 24, 1998, because the Appel lant failed to revive the judgment within ten years of the June 24, 1988, decree as required by the prior version of the statute. This Court has previously held that a plain reading of section 516.350.1 provides that judgments, not excluded or revived, shall conclusively be presumed to be paid and satisfied ten years after the original rendition of the judgment. (FN4) The statute also provides "no tolling period during which debts are uncertain or uncollectible," and "the in ability to collect a debt does not prevent the normal operation of section 516.350.1."(FN5) No version of the statute requires that an adjudication take place to establish that a payment not excluded is presumed to have been paid upon the passage of ten years. The case Appellant cites to support her first argument, In re Marriage of Holt, involved a situation where litigation was in progress at the time that section 516.350 was amended and the plaintiff was given the benefit of the new amendments to the statute.(FN6) In this instance, Appellant brought her litigation three and a half years after the payments in question are presumed to have been paid and four months after the 2001 amendments to the statute went into effect. With regard to Appellant's second argument, at the time when the original diss o lution decree was entered, June 24, 1988, there was no statutory exception from the pre sumption of payment, absent a timely revival, that applied to dissolution decrees award ing employment benefits as future payments or as payments to be made over a period of time. There is also no uncertainty contained in the language of subsection 3 in the 2001 amendments that the new exclusion for judgments awarding periodic payments of em ployee benefits to a spouse did not take effect until August 28, 2001. Consequently, it does not matter if Appellant characterizes the nature of this payment as being future or periodic. There was simply no statutory exception to the presumption of payment of this award after ten years had passed from the entry of the original judgment, unless Appel lant had filed a timely motion for revival of the judgment. Appellant finally argues that this is a remedial statute and the 2001 version should be applied retroactively to ensue her rights to due process.

However, "once the original statute of limitation expires and bars the plaintiff' s action, the defendant has acquired a vested right to be free from suit, a right that is substantive in nature."(FN7) "[S]tatutory provisions that are substantive are gener ally presumed to operate prospectively, unless the legislative intent that they be given ret roactive operation clearly appears from the express language of the act or by necessary or unavoidable implication."(FN8) The only language in the statute referencing when the new statutory amendments were to be applied establishes August 28, 2001 as the effec tive date. On June 24, 1998, Respondent acquired a substantive right to be free from suit with regard to those portions of the dissolution decree that were presumed to be paid, and the 2001 amendments to section 516.350 do not apply retroactively to strip away that substantive right. IV. The parties had stipulated that the judgment awarding profits from the stock options had not been revived by Appellant within the ten year period following the June 24, 1988, dissolution decree as required by the pre-2001 version of section 516.350. The payment was presumptively paid by operation of the applicable statute. The judgment of the trial court is affirmed.

Footnotes: FN1. These payments were not entered on the record as payments made on the judgment until Appellant filed partial satisfactions of the judgment on June 11 th and July 8 th , 2003. FN2. Lueckenotte v. Lueckenotte, 34 S.W.3d 387, 391 (Mo. banc 2001). FN3. Id. FN4. Pirtle v. Cook, 956 S.W.2d 235, 245 (Mo. banc 1997). FN5. Id. FN6. In re Marriage of Holt, 635 S.W.2d 335, 338 (Mo. banc 1982). FN7. Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 341 (Mo. banc 1993). FN8. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 872 (Mo. banc 1993). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.