*1 GAERTNER, SR., GARYM. Before EVELAND, Respondent, Michele SULLIVAN,
P.J., J., B. SHERRI SHAW, T. J. BOOKER EVELAND, Jerry Appellant.
ORDER No. ED 83883. PER CURIAM. of Appeals, Missouri Court (“Mov- Spencer Frederick Appellant, District, Eastern ant”), Five. Division City of Court of the Circuit post- motion for denying his Rule 29.15 7, 2004. Dec. evidentiary hear- after аn conviction relief Rehearing Feb. Denied trial, jury Movant ing. Following of forcible sod- convicted three counts (1994),1 and
omy, section 566.060 RSMo rape, 566.080. section
three counts im- years to five
Movant was sentenced of forcible the first count
prisonment for years imprisonment and five
sodomy rape, the sentences first count of concurrently, years imprison-
run and ten remaining counts
ment on each of the sentences sodomy rape,
forcible con- concurrently with other and
run each
secutively year five sentences. We
affirm. par- the briefs of the have reviewed
We As an appeal. record on
ties and the jurispru- opinion would serve
extended affirm we purpose,
dential 84.16(b). to Rule
pursuant indicated. unless otherwise are RSMo *2 motion, MO, Louis, the court Burke, convert- On Theresa C. ed the decree into one dissolv- respondent. marriage and ordered Husband to ing MO, Clayton, Dearing, Theodore D. pay a month as maintenance Wife $800 *3 appellant. agreement separation with the aсcordance the The court also and decree. OPINION made the maintenance modifiable award NORTON, Judge. GLENN A. incorporated separation agree- the and not con- to extent its terms did ment the the de- Jerry Eveland in the оther disso- provisions flict with nying modify his motion to the dissolution party appealed the lution decree. Neither decree. We reverse and dissolution decree. I. BACKGROUND modify the dissolu- Husband moved to (“Husband”) Jerry and Michele Eveland tion decree under section 452.370 RSMo (“Wife”) separated and entered Eveland 2000,1 monthly pay- that the arguing $800 an which Husband under that be ter- was maintenance should ment ’ agreed upon pay a month his $800 Wife change in minated to a substantial due
retirеment: contended that the circumstances. Wife pay per [Husband] [Wife] shall $400 of marital payment was a final division support month as and for child five subject to modifica- property and was not decree; years from the datе of thereaf- Wife, agreed with tion. trial court as pay per he shall month and ter $400 appeals. and Husband The child or maintenance. obligation upon shall cease maintenance II. DISCUSSION or retirement other sever- [Husband’s] City аnce of service from the St. Louis not find the court did Because Department. Upon his retirement Fire agreement uncon parties’ separation the from other severance of service the or- sepa it the incоrporated into scionable as City Department, St. Louis Fire set- decree, appealed, which ration in marital interest his [Wife’s] tlement binding. are terms of the See pension, pay per as he will month 569, $800 571 Peaslee v. 844 S.W.2d paid maintenance or cause to be from E.D.1992); (Mo.App. section 452.325.2. City his retirement a St. Louis interpretation “The cardinal rule in month, Department employee per intention of contract is ascertain QUADRO. by by He either consent or tо that inten give effect parties necessary to will execute all documents Hathman, Sigma Alpha Inc. v. J.E. tion.” right her to continue to receive secure (Mo. 261, Club, 264 491 Epsilon S.W.2d death, his as widow benefits after either ex parties have banc Where Qualified or Domestic Relations Or- by complete agree final and pressed their der, Fire De- City from said St. Louis writing ambiguity in and there partment Fund. Retirement contract, parties the intent of solely the four from must be determined legal separa- The court entered decree contract itself. Mid Rivers tion, corners incorporating agreement. Nei- McManmon, Mall, v. separation decree. L.L.C. party appealed ther 2000, noted. are RSMo unless otherwise
369 E.D.2000). 258, E.D.2004) if (Mo.App. But (Mo.App. (court terms of the separation agreement are am should not “countenance the use biguous, court may appropriate then the refer to mat maintenance as method to beyond ters compensate spouse the face of the it for an document interest property” self. See marital in absence of evidence Erwin Palmyra, E.D.2003). result). parties intended An that Thus, when, question what remains: did arises cor the four parties alone, ners of these intend? The intent the contract it appears is a of fact for the trial question “the court to susceptible terms are of more than answer reference to extrinsic evidence. meaning persons so reasonable *4 Education, 695; Board 134 S.W.3d at may fairly honestly and differ in their con of see also Jackson v. Christian Salvesen struction of the terms.” v. Chehval Inc., 377, Holdings, 978 S.W.2d 383-84 Center, Mercy John’s Medical 958 S.W.2d E.D.1998). (Mo.App. 36, Erwin, E.D.1997); (Mo.Aрp. 38 119 at S.W.3d 585. Whether a is contract Wife claims that the of issuance a ambiguous question is a of law that we qualified domestic relations order determine without deference to the trial (“QDRO”) required by is federal —which court’s decision. Bоard City Education of pension law in order to distribute funds to State, 689, St. Louis v. 134 S.W.3d 695 spouse a intent to —evidences E.D.2004). (Mo.App. monthly treat payment as a division of property. argument unpersuasive This is This agreement is QDRO a required because is not in order ambiguous it because is reasonably suscep government to and divide distribute a re tible of more than one On meaning. its plan like tirement Husband’s civil service face, the agreement refers to the $800 Burns, pension. Marriage See In re monthly payment both as and maintenance E.D.1995) 648, (Mo.App. 903 S.W.2d 652 aas settlement of Wife’s marital interest 401(a)(13), 26 (citing U.S.C. sections pension, fairly which could be 401(a)(last 411(e)(1) sentence), 414(d)). and construed as a division of If property. provided The that parties fact for the obligation maintenance, is deemed to be it possibility transferring monthly subject to modification under section payment by way QDRO aof is not deter 452.370. If deemed to be a division of of their minative intent. property, it is not. See sections 452.330.5 452.360.2; Ochoa, also see Ochoa v. 71 that argues ambigu Husband (Mo. 593, 2002). S.W.3d banc It is ity agreement in this must be construed classify distribution against lawyer Wife because her drafted it. spouse’s interest in civil pension servicе Ambiguities only should be construed Bums, as maintenance. In re Marriage against the drafter when other means of E.D.1995). 648, 903 S.W.2d 652 (Mo.App. construction fail and the intent of par Nevertheless, as we concluded in ties cannot be ascertained from other even when an agreement improperly clas sources. See State Farm Mutual Auto pension sifies distribution plan as Esswein, mobile Insurance Co. maintenance, agreement if that is not E.D.2000); 842 (Mo.App. Alu found unconscionable and is incorporated Enterprises, minum Products Inc. v. into a decree that is not “the appealed, Tooling Manufacturing Fuhrmann parties Co., are bound their terms of E.D. agreement, they Here, intended to testimony be.” own parties 571; Booher, at provides insight see also Booher v. their CRAHAN, Judge, monthly G. that the LAWRENCE
Husband testified
$800
dissenting.
monthly
payment
part
was Wife’s
of his
that he
pension; but he also testified
be
in con-
respectfully dissent. Viewed
it was
and did
lieved that
for maintenanсe
text,
agree-
the separation
I do not find
payments
those
would
anticipate
agreement
The
ambiguous.
to be
hand,
last forever. On the other
'Wife
payment
per
calls for
initial
$400
monthly payment
testified
the $800
per month
month in child
and $400
to be maintenance and
was never intended
These
would
payments
in maintenance.
instead,
was,
property
settlement.
or sever-
upon Husband’s retirement
cease
testimony
conflicting
There
also
about
ance of service
the St.
meaning
of handwritten notes Hus
begin
when wife was to
Department,
parties’ negotia
during
band made
receiving her marital interest Husband’s
tions,
given
lawyer
which were
Wife’s
per
pension,
which amounted
was drafted.2
befоre
funds,
receipt of
Upon
month.
such
Wife’s
in this
cannot be re
for her needs
inability
fully provide
resolving
conflicting
solved without
cease and there
presumably
would
*5
testimony,
requires
and that
assess
be
need for maintenance.
longеr
parties’ credibility.
ment
the
We defer
of
the
Any other construction of
the
make that determina
trial court to
The
render
it unconscionable.
tion,
in
than
position
it is
a
we
as
better
provides that
the
agreement expressly
Siding Suрply,
are to do so. See United
to receive from
payment Wife was
Services,
Improvement
Inc. v. Residential
Department
was
the
St.
Inc.,
W.D. “as
marital interest
settlement of [Wife’s]
implicitly
the trial court
Since
majority
in
As the
acknowl
pension.”
his
solely on
ambiguity
found no
and relied
classify
edges,
it is
the distri
language
agreement,
incorpo
of the
as
in
civil
interest
a
spouse’s
bution of
decree,
rated into the
it had no
re
as maintenance.
In
pension
service
by
reason to resolve the
refer
Burns,
Marriage
of
parties’ testimony. We re
ence to the
in
Although the decision
(Mo.App.1995).
of fact can deter
mand so that the trier
569, 571
Peaslee
See, e.g.,
mine
Board
parties’
suggest
(Mo.App.1992),can be read
Education,
(finding
2. Those Court. hearing been filed with this evidence at the on been admitted into Rosenblum, Stephen Allowing Welby, misclassification of N. R. Scott MO, pension Clayton, appellant. а marital in interest benefits as maintenance to render that modi- interest Whitehorn, Louis, MO, M. Carolyn would, law, fiable as matter of violate respondent Juvenile Officer. public policy and render the public It unconscionable. would violate GAERTNER, SR., Before GARY M. policy because neither the dissolution court SULLIVAN, P.J., J., B. SHERRI nor this court would be able to evaluate SHAW, T. BOOKER J. of a reasonableness division of marital
property future, dependent upon unspeci- ORDER fied events. inter- Surrender marital CURIAM. PER in property ests in than exchange for less a sum certain is unconscionable. judg- D.P. from the trial court’s finding him guilty sod- I
Although would affirm the judgment, omy degree, in the first violation of note that nothing majority opinion 2000,1 566.062.1, Section RSMo and sub- compels a different result on jecting provisions him to the of Section error majority identified trial is the 211.031.1(2). D.P. argues the trial court court’s conclusion the misclassified (1) in conducting hearing pursu- erred marital interest in pension ant to pres- Seсtion 491.075 without the modifiable as matter law. There (2) counsel; plain ence of D.P.’s committed is, however, ample evidence to admitting three-year error in old vic- finding that contrary modification was also *6 hearsay tim’s making statements without Nothing ma- 491.075; proper finding under Section jority opinion precludes finding such a on (3) in finding erred D.P. committed the statutory sodomy offense of in the first reasons, For foregoing af- degree. firm the judgment. par- We have reviewed the briefs ties thе record appeal on and find the claims of error to merit. be without No appears. error of law An extended opin- In the Interest of D.P. reciting ion facts and restating detailed principles ED have no prece- lаw would No. 83875. dential trial value. The court’s Missouri of Appeals, Court 84.16(b). pursuant is affirmed to Rule District, Eastern parties have been with a furnished memo- Division One. only, randum for their setting information Dec. 2004. forth the reasons for order affirming 84.16(b). pursuant to Rule Motion Rehearing Transfer to and/or Supreme Court Denied Feb. subsequent statutory are to RSMo 2000.