Paulette M. Ochoa, Appellant, v. Marco A. Ochoa, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Paulette M. Ochoa, Appellant, v. Marco A. Ochoa, Respondent. Case Number: ED78368 Handdown Date: 09/11/2001 Appeal From: Circuit Court of St. Louis County, Hon. Thea A. Sherry Counsel for Appellant: Edward C. Vancil and David G. Kullman Counsel for Respondent: Lawrence Wittels Opinion Summary: In her supplement to her motion for rehearing, Wife asks this court to retrospectively apply an amendment to section 516.350 effective August 28, 2001. DENIED. Division One holds: Once the ten-year period ran, Husband acquired a substantive right to be free from suit. Therefore, the new version of section 516.350 cannot be applied retrospectively. Furthermore, section 516.350 does not revive actions that have expired prior to its effective date of August 28, 2001. Wife's motion for rehearing and/or application for transfer is denied. Citation: Opinion Author: Robert G. Dowd, Jr., Presiding Judge Opinion Vote: DENIED. Russell and Teitelman, JJ., concur. Opinion: Opinion of August 28, 2001, is withdrawn. New opinion follows. On Motion for Rehearing In her supplement to her motion for rehearing, Wife asks this court to retrospectively apply an amendment to Section 516.350 effective August 28, 2001. The Legislature amended the language of Section 516.350 to provide, in

pertinent part:

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 or dividing pension, retirement, life insurance, or other employee benefits in connection with a dissolution of marriage, legal separation or annulment which mandates the making of payments over a period of time or payments in the future, 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 the 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 last payment, such judgment shall be conclusively 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. An action to emancipate a child, and any personal service or order rendered thereon, shall not act to revive the support order. (Emphasis added.) Under the new version of Section 516.350, the Legislature has carved out exceptions for pension, retirement, life insurance, and other employee benefits. Section 516.350 previously provided an exception only for child support and maintenance. Under the version of Section 516.350 in effect at the time of Wife's Motion for Approval of Qualified Domestic Relations Order and her appeal, Wife's motion was barred because the judgment had not been revived within the ten-year period and did not fall within either exception. Wife now requests this court to apply the new version of Section 516.350 retrospectively because she now comes within the exceptions and her action would not have been barred. Wife argues Section 516.350 is procedural in nature and thus should be applied retrospectively. The Missouri Constitution prohibits laws that are retrospective in operation. Mo. Const. Article I, Section 13. A retrospective law takes away or impairs vested or substantial rights acquired under existing laws, or imposes new obligations, duties, or disabilities with respect to past transactions. Doe v. Roman Catholic Diocese of Jefferson City, 862 S.W.2d 338, 340 (Mo. banc 1993). Substantive laws, those relating to rights and duties that give rise to a cause of action, may not apply retrospectively. Id. at 341. Procedural laws, those relating to the machinery for process in the causes of action, may apply retrospectively. Id. In this case, Section 516.350 acts like a statute of limitations. Under Section 516.350, a plaintiff has ten years to revive his or her judgment; and if the judgment is not revived within that ten-year time period, then any later action is barred. While statutes of limitations are generally seen as procedural in Missouri, they do create a substantive right which predominates when the limitation period has expired. State ex rel. Wade v. Frawley, 966 S.W.2d 405, 407 (Mo. App. E.D. 1998).

Once an 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. Doe, 862 S.W.2d at 341. Thus, an amended statute cannot be applied to revive the cause of action in that it would contravene Mo. Const. Article 1, Section 13, prohibiting the retrospective application of a law affecting a substantive right. Id. Furthermore, a change in a statute of limitation will not revive a cause of action which has already expired. State ex rel. Wade, 966 S.W.2d at 407. Once the ten-year period ran, Husband acquired a substantive right to be free from suit. Therefore, the new version of Section 516.350 cannot be applied retrospectively. Furthermore, Section 516.350 does not revive actions that have expired prior to its effective date of August 28, 2001. Wife's motion for rehearing and/or application for transfer is denied. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.