Dallas v. Dallas

In Dallas v. Dallas, 236 Kan. 92, 93, 689 P.2d 1184 (1984), the court considered the application of 60-2403 to child support payments. For over 10 years, the father in Dallas failed to make his full child support payment. The father argued, and the Dallas court agreed, that all underpaid payments within the 5 years following each of the child support payments were dormant judgments. Policy arguments very similar to those in the case at bar were made in Dallas: "Appellant mother first argues it is against public policy to apply the dormant judgment statute to underpayments of child support. She then cites cases pertaining to the statute of limitations. These cases, as well as K.S.A. 60-520 provide that partial payment by a debtor will toll the statute of limitations. The statute of limitations however, is not at issue here; rather, the dormant judgment statute, K.S.A. 60-2403, is controlling. It provides: 'If execution, including any garnishment proceeding and any proceeding in aid of execution, shall not be sued out within five (5) years from the date of any judgment, including judgments in favor of the state or any municipality in the state, that has been or may hereafter be rendered, in any court of record in this state, or within five (5) years from the date of any order reviving such judgment, or if five (5) years have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor.' "We note this statute speaks of 'all judgments' making no exception for child support judgments. It makes no provision for partial payments tolling dormancy. Only the issuance of execution or garnishment will toll the dormancy statute. See First National Bank v. Harper, 161 Kan. 536, 169 P.2d 844 (1946). Appellant did not seek execution or garnishment until January 21, 1980, thus the judgments for unpaid child support due more than five years before that date are dormant." 236 Kan. at 94.