Cregan v. Clark
658 S.W.2d 924
Mo. Ct. App.
1983
Check Treatment

*3 says we should re C.J., action.1 SOMERVILLE, cause of She Before SHAN- An the entire decree. PRITCHARD, verse “set aside” GLER, DIXON, WASSER- the cause of KENNEDY, is a abatement destruction STROM, JJ. MANFORD and before his death. 1. A filed Mr. Clark brief was

927 Thomasson, 626, In re parts action. of the fall 159 and financial decree must (Mo.1942). well, 628 power distribute non-marital marital and Mrs. in saying Clark is correct parties, power grant permanent legal sepa that a suit dissolution or for and the like are all predicated maintenance upon ration abates the death of one Carr upon legal separation. final judgment. before Matlick v. Carr, (Mo.1952). Matlick, 212 Mo.App. S.W. (1923). (In Matlick the death af occurred ter trial and but while case II was in the pending trial court a mo complains upon The wife appeal held, tion for a new trial. It the court entering sepa- the court’s a decree of noting that the case was bosom still in the above, ration. noted As this is a occurred, the trial when the death which must be decided the whole decree

that the divorce not final judgment was court’s upon finding judgment rests the the action the and that was abated death by legal separation. of of one It is not to decide spouse. necessary the but point, pend we assume that a case in un her answer Wife had denied appeal, where ing upon the dissolution marriage oath that the was irretriev der the legal separation challenged, is itself case, In such a in order ably broken. opposed to the other the de provisions of sepa decree the court to dissolution or cree, the same is in status as in pending ration, one is it find that the must the court upon trial a new motion for 452.320.2(1), broken. irretrievably RSMo § trial. 1See C.J.S. Abatement and Revival 1978. 128(b) (1975)). The or legal dissolution § out that the court made no points Wife

separation portion of the have not decree finding of situa- specific any of the factual death, “final” at become the time of the that says tions and the decree must be the sense that the court the spoken has not that that reversed reason. cites for She on the dispute rights last word and the of 547 Marriage Capstick, re of proposition In the are not parties conclusively settled. that 522, (Mo.App.1977). 524 In S.W.2d Randall, ex rel. Berbiglia, State Inc. v. 423 case, not only specific was there no though, 765, (Mo. 769 1968). Upon S.W.2d banc the finding by any predicate the of of the a spouse death of for the there is no res of there was no evidence statutory grounds, operate to issue be upon and the us, In there any of them. the case before comes moot. Dyer, See Anderson v. 456 might was evidence from which the court 808, S.W.2d 814 see also (Mo.App.1970); stat- found one of the five reasonably have Vossbrink, State ex rel. Weber 333 v. “had namely, that the wife utory grounds, 298, 301 (husband) the way that behaved such

However, with rights reasonably expected when be to live property cannot involved, (wife).” 452.320.2(l)(b), the are parties parties are RSMo § to have it up entitled that case The summed in this testimo- aspect of the husband died; extravagant. though “Well, decided one of the has she liked to be parties ny: 814; Dyer, degree certain supra Anderson Caddell v. was incommunica- She to Caddell, not Mo.App. any 222 S.W. 873 tive. We did not have just —could Revival, adult (1920); 1 Abatement discussions on an any C.J.S. have rational (1975); me from the children. 128(b) upon and our level. alienated decision She § be- portion extremely inci to irrational requires subject the case was She in- give that we then pass upon ap proceeded the wife’s havior.” He dentally of his conclusions. peal trial court’s decree stances illustrative that, opinion This be a difference of separation. is for the reason There could Clark falls, ascribed to Mrs. then the whether behavior legal separation the decree Clark enough say that Mr. property was respecting egregious court’s All the benefits had been expected plan. to live retirement could not be reasonably during employment during his TWA yield with her—but on this we to the earned court, fully af- It vested at the marriage. who found was impliedly trial time of trial. Had the terminated firmative. husband (the employment of March Williams, Marriage In re 593 S.W.2d 1981), plan July, trial was in retirement wife, cited (Mo.App.1980), also $1,880 paid per have him month for would not reversal of the decree was based age beginning at 60—or at 45 it age life finding a specific absence month. paid per would have him $750 upon the statutory predicate, but rather presumably These are lifetime annuities. absence of evidence thereof. of 45 age Mr. would have reached the Clark It be satisfying would indeed more retirement September on 1982. The court was specific finding see a that the its II plan Stage phase. at trial time was in behavior was such satisfied that the wife’s 663, 665 Kuchta, 636 See Kuchta v. be reasonably the husband could (Mo. 1982). banc her, we do not expected live with but plan the retirement bene- In such a case finding a specific think the absence such be dealt are and must fits marital the court’s fatal to this decree. From court. Kuchta with as such the trial finding Kuchta, supra. broken, we infer that may lump sum death a Upon Mr. Clark’s he existence of was satisfied *5 to a benefi- paid “designated would be finding. The statutory predicate for such contrib- would the amount ciary”. This be to found accordance facts are deemed be term, of the 4% by employer uted the over Supreme the Court with result reached. There is no gross earnings. employee’s the Allmon, v. 73.01(a)(2); Allmon Rule designated had whether Mr. Clark evidence (Mo.App.1981). S.W.2d 40 or, desig- had so, whom he a beneficiary, the of We hold that decree a substantial would amount to nated. This supported by the evidence separation was sum. of decree is affirmed. portion and that V III inadequacy complains of the Wife complains that Wife husband by court. allowed of the maintenance an the marital received excessive of amount The Here, too, be she must sustained. Her shows the marital property. brief per her $500 court awarded maintenance $310,596. says She property be valued at age at the years of month. She was 41 valued at gave property the decree her trial, em had never been and time $128,736, property and the husband valued no had train the home. She ployed outside $149,810. in this divi at We find no error her qualify experience which would ing or in the circumstanc property sion of marital She had employment. any specialized would add analysis es A close case. home her at 13-year-old daughters two value this nothing precedential her granted for whom the custody, presents it no unusual opinion, since per each of $500 award support child unique aspects. average her estimated total She month. $3,539 (including monthly expenses IV per house at $768 on the mortgage payment among expenses these month). divided wife of She A criticism by second $1,346 per the two children division of herself and decree with reference $2,193 month sustained, per and the month herself be and marital must hand, Husband, other on the and remanded the children. decree must be reversed $85,000 He estimat year. making per the was The court set aside to the trial court. $1,540, and monthly expenses at his total property his TWA ed as non-marital husband $3,586.92. Buthod, monthly take-home pay (Mo.App.1981), 624 S.W.2d 119 The maintenance should be from decree increased where a similar was condemned. $1,000 month to that case per specific month. Mrs. This court in directed a per $500 would Clark still have to of the residence. We will supplement disposition personal give income and Mr. undertake to trial court a detailed earnings, respect, Clark’s fears were he direction in this since the unfounded that would death which have to continue to in idleness Mr. introduces support her Clark uncertainties of luxury. we us. are uninformed the record before make The trial court should have latitude to The increased maintenance will be disposition such between Mrs. Clark effective from the date of the decree to Mr. Mr. estate. Clark’s Morris, Clark’s death. In re Marriage is affirmed 39, 46 (Mo.App.1979); Phillips but is re- the remainder 233 S.W.2d Phillips, fur- versed and cause is remanded for proceedings (with ther respect only to VI plan, retirement maintenance and Husband’s appeal is based two residence) in accordance with opinion. points. First is the court’s inclusion in mar- ital of a (not the plan retirement PRITCHARD, JJ., WASSERSTROM earlier, one mentioned which was held not concur. to be marital property, plan but parallel to which husband had contributed and J., DIXON, concurs in separate opinion. a present $89,000). which had cash value of SOMERVILLE, C.J., in separate dissents He an earlier unpublished opinion cites opinion. Supreme our Kuchta, Court in Kuchta which supra, was set aside final MANFORD, JJ., SHANGLER concur we opinion have cited. The disal- SOMERVILLE, dissenting opinion lowed. C.J. *6 DIXON, Judge, concurring.

VII I the write majority opinion. concur in I husband’s complains The second point of in only explicit to make what is implicit the maintenance award. He claims no Judge Kennedy’s opinion. The in record maintenance should have been allowed. this case that there a will demonstrates was above, What we have said the main- holding husband, probate, of the admitted to which award inadequate, tenance also of disposes The property leaves all to his wife. of this point. have some off to property husband will set the final of the disposing his estate in order VIII The to status property. marital issue as the One other should be mentioned. of the as a claimant to the husband’s wife The decree in this case left the as by in- under the will or separate property residence, in subject tenants common in the or properly is not reached testate succession right of the to the wife to the same occupy my appeal. I do not wish decided in this 1,1986, children until July upon with the in the affirmance of the decree concurrence 1, other contingencies July certain before with imply any of to view legal separation The sold and property should then be (cid:127) issues. respect to those proceeds equally the sale be- net divided husband and was to tween wife. The wife SOMERVILLE, Judge, dissenting. monthly house mainte- pay payments, the con- My principal I dissent. party respectfully nance and insurance. While neither this, objects to the the trial cern the confusion which is sure parties and is with wake Marriage majority opinion. court are referred to In re of arise in the of the 930 arriving Although

In majority separate its decision the maintenance is still state, 452.130, in opinion rejected of the application recognized doctrine RSMo § Instead, of 1978, distinguishable abatement. it it is legally legal chose affirm legal the of separation separation. Separate provides decree and division maintenance children, (with noted). only support of a property exceptions marital of wife and whereas, doing legal net effect of so a separation custody constitutes fixes of children, final the adjudication that was maintenance wife support and children, prior broken to the and setting husband’s and mandates apart death and confirms the wife’s share of the her spouse separate each his or property and property. property. marital At same time it a division of marital Sec- 452.330, 452.340, spouses leaves status as tions 452.335 of husband and RSMo is escape and intact of the 1978. There no from the fact that wife date of hus- further, legal separation band’s ramifications are going death. Absent vastly reaching separate more far than opinion all marital majority preserves maintenance, rights of re- property rights the wife in the deceased husband’s adjudicated spective spouses are (including estate his divisional share of separation. marital property). a holding separate Cases that decree The impact majority opinion of the is not a wife’s mari- destroy maintenance does with the specter unjust haunted enrich- estate, rights tal a deceased husband’s gross ment which inequity, neither Bingham, 325 Mo. Bingham application of doctrine of abatement Knese, (1930), Knese v. nor by majority the result reached opin- obvious- (Mo.App.1949), ion example, constitutes an antidote. For premise property ly rest is

the doctrine of abatement and the applied rights were never respective spouses property exclusively marital held as demonstrated, adjudicated. previously As a by entirety, surviving spouse tenants is true respect same with to the estate succeeds entire marital not- rights where the withstanding the fact the was ir- spouses adjudicated. have respective been hand, the other un- retrievably broken. On disposition majority der the made 452.360(3), Cognizance is taken that § opinion surviving spouse unjustly en- 1978, provides that on motion of ei- RSMo riched simultaneous retention his or ninety days no than after party ther earlier her divisional share of marital legal separation, of a entry decree preservation rights his or her marital legal separa- may convert spouse’s patent deceased estate. The exam- of mar- tion into a decree of dissolution ples construed, barely mentioned scratch the surface of discretion riage. judicially As 452.360(3), injustices corresponding inequities possessed by trial courts under § *7 envisioned, virtually infinitum, tightly circumscribed may be ad if RSMo is (the conversion, opin- cases” save for “rare irrevocably law commits itself either implies possibility ion footnote doctrine abatement or result conversion), grounds opposing pronounced by majority opinion. religious no there. is should not be denied where 452.305, As prescribed in RSMo § is possible. evidence that reconciliation grounds grounds Howard, Howard identical, marriage are dissolution preservation It is clear that “there remains no reasonable likelihood spouse’s in a rights of marital deceased can be preserved estate is not a consideration is bro- therefore the al- rights respective spouses have 452.330, (Supp. ken”. RSMo Section in the decree of ready adjudicated been 1982), setting apart mandates each legal separation. . spouse separate property or her and the litigation, to this as well division of marital in both bar, marriage. public, bench are entitled separation and dissolution of definitive guidance on rampant prob-

lems inescapably flowing from the death of

one spouse after a legal separa- decree of

tion has become final absent or appeal,

where pending death occurs an appeal from

a decree legal separation which is subse-

quently affirmed. It perceive is difficult to

how one can conscientiouslysubscribe to the aftermath,

belief that property rights in the cases,

both in this case and future should be

decided on an ad basis by balancing hoc

variant equities inequities peculiar or

each. The role of the lawyer advising

clients is made even more difficult when

such uncertainty perpetuated.

The parties to this litigation, as well as bar,

the public, bench and would all be

better by going served a step further in this

case and holding that when one spouse dies

after a decree of legal separation has be-

come final absent an appeal, and before

conversion, or where death pending occurs

an appeal from a legal separation decree of affirmed,

which is subsequently death, by

operation law, converts the decree of

legal separation into a decree of dissolution

with all of its attendant legal ramifications.

Without meaning flippant callous, to be

death has equal no for irretrievably break-

ing a marriage and precluding reconcilia-

tion. MANFORD, JJ.,

SHANGLER and con-

cur. SEARCY, Plaintiff-Respondent,

K.P. SEARCY,

Ramona Jean

Defendant-Appellant.

No. WD 33784.

Missouri Appeals, Court of

Western District.

Sept.