Kathleen Marie Reimer appeals the circuit court’s grant of summary judgment to Scott Lee Hayes. In Reimer’s sole point on appeal, she contends that the court erred in granting Hayes’s motion for summary judgment because he failed to make a prima facie showing of entitlement to judgment as a matter of law. We affirm.
On appeal from summary judgment, we view the record in the light most favorable to the party against whom judgment was entered, and afford that party the benefit of all reasonable inferences.
ITT Commercial Fin. Corp. v. Mid-Am. Marine Supply Corp.,
Three years later, on August 5, 2010, Reimer filed a petition for damages alleging fraud and civil conspiracy against Hayes and Lehigh for allegedly misrepresenting and conspiring to misrepresent Hayes’s income such that Reimer was awarded substantially less money for the support of her children than she was entitled. Lehigh denied Reimer’s allegations and set forth the affirmative defenses of estoppel, waiver, laches, res judicata, collateral estoppel, failure to assert compulsory counterclaims in prior litigation, settlement, release, and accord and satisfaction. Hayes also denied liability and, on November 16, 2010, moved for summary judgment on the grounds that Reimer had released Hayes from all claims set forth in her petition per their $100,000 settlement. Reimer responded by acknowledging release of claims for undistributed marital assets but denied release of tort claims. Reimer asserted that her three count petition made no claim for undistributed marital assets. On January 14, 2011, the circuit court granted Hayes’s motion for summary judgment without comment. Reimer appeals.
On appeal, Reimer charges that the court erred in granting Hayes’s motion for summary judgment, contending that Hayes failed to make a prima facie case of entitlement to judgment as a matter of law. Reimer argues that she only released Hayes from claims of undistributed marital assets, not actions in tort. She avers that there are no marital assets to be divided and that a tort judgment is monetary and does not award or divide specific property or assets of the judgment debtor. Additionally, she contends that the “Exhibit A” letter from Hayes’s employer, that states that Hayes did not realize any commissions until after the dissolution was granted, was not proof as to when Hayes’s commissions were earned such as would warrant a prima facie showing that the commissions were earned after the dissolution. Reimer maintains that “[t]he sole question before the court is whether the release executed by Ms. Reimer, which is, of course, a contract, bars her from filing the underlying suit making tort claims for fraud and civil conspiracy” against Hayes. We need not reach this question as Reimer’s tort claim is an improper collateral attack on the dissolution judgment and, therefore, barred.
When considering an appeal from summary judgment, we review the circuit court’s grant of summary judgment
de novo. ITT Commercial Fin. Corp.,
Here, the facts are uncontroverted that, on April 20, 2006, the marriage of Reimer and Hayes was dissolved, property was awarded, and child support assessed based on Hayes’s purported yearly income of $75,000. Thereafter, Reimer learned that in 2006 Hayes received over one million dollars in employment commissions. Reimer contended that the commissions were income of the marriage and threatened to set aside the dissolution judgment pursuant to Rule 74.06. Had she followed
Reimer did not move the dissolution court for redress. Reimer did, however, settle claims she had, at the very least, with regard to Hayes’s commissions as they related to marital property. At that time, Reimer was aware of potential claims against Hayes’s employer, Lehigh, as the June 11, 2007, settlement released Lehigh of “any claims” that existed at that time. Because Reimer’s present tort action is a collateral attack on the dissolution court’s child support determination, it is, therefore, barred. “Where a judgment is attacked in other ways than by proceedings in the original action to have it vacated or reversed or modified or by a proceeding in equity to prevent its enforcement, the attack is a ‘collateral attack.’ ”
Barry, Inc. v. Falk,
Pursuant to section 452.360, RSMo Cum.Supp.2011, the court’s judgment of dissolution of marriage as it affects distribution of marital property is final and not subject to modification. Nevertheless, Rule 74.06(b) “allows a trial court to set aside a judgment based on a finding of fraud,” a proceeding in the original action which would not constitute an impermissible collateral attack.
Essig v. Essig,
Here, Reimer’s allegations of fraud are intrinsic, as they relate to potentially false averments made to the court in the dissolution proceeding. Thus, Reimer had no claims for intrinsic fraud that may have affected her child support award beyond one year from the dissolution of her
The facts which constituted the basis for Reimer’s threat to set aside the judgment and, ultimately, her settlement with Hayes, are the same facts and circumstances from which Reimer bases her present tort claim. Although her legal theory has changed, the facts have not. Reimer points to no facts, unknown or yet-to-occur within the year after her dissolution, that formed the basis for a new claim of relief. To be sure, “[t]he elements of a cause of action to set aside a property settlement agreement on the grounds of fraud are the same as in any other case based on fraud[.]”
Curtis v. Kays,
We conclude that the circuit court did not err in granting summary judgment to Hayes because Hayes was entitled to judgment as a matter of law. Reimer’s attempt to recover past child support via a tort action was an impermissible collateral attack on the dissolution judgment. We affirm the circuit court’s judgment.
All concur.
Notes
. Or, clearly authorized mechanisms in trial court to vacate or amend the judgment.
. It is necessary to note, however, that "[t]he motion to modify is for the purpose of addressing substantial changed circumstances.”
Winters v. Winters,