Arnsperger v. Arnsperger, WD

• Decision Date: 01 September 1981
• Docket Number: No. WD,WD
• Citation: 624 S.W.2d 87
• Parties: Robert Lee ARNSPERGER, Respondent, v. Del Dee Ann ARNSPERGER, Appellant. 31949.
• Court: Missouri Court of Appeals

Page 87

624 S.W.2d 87

Robert Lee ARNSPERGER, Respondent, v.Del Dee Ann ARNSPERGER, Appellant.

No. WD 31949.

Missouri Court of Appeals, Western District.

Sept. 1, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 3, 1981.

Application to Transfer Denied Dec. 14, 1981.

D. Eric Sowers, Brunswick, for appellant.

John David Collins, Macon, for respondent.

Before KENNEDY, P. J., WASSERSTROM, C. J., and SHANGLER, J.

KENNEDY, Presiding Judge.

This is an appeal by the wife from a dissolution decree entered in an uncontested case, in which decree the court also approved a written property settlement presented by the parties.The petitioner in the dissolution case was the husband, whose attorney (not his counsel on this appeal) prepared the property settlement and represented the husband in the court proceeding.The wife was not represented by counsel, but appeared at the court proceeding and testified briefly.

The wife alleges error in two points-first, that "the court erred in finding that the separation agreement was not unconscionable because it failed to consider sufficient evidence to support such a finding", and, second, that the court failed to set aside the wife's separate property.

The wife's first point must be sustained and the judgment of the court reversed with respect to the court's approval of the property settlement.

The husband in the dissolution hearing testified briefly to the formal matters required to be shown in a dissolution action, identified the property settlement which had been executed by himself and his wife, and testified in broad general terms to the main features of the contract.The wife was called to the stand and testified to her assent to the husband's testimony and to the property settlement contract.All the information which the court had about the economic circumstances of the parties was contained in the contract itself.It contains a list of 46 items of personal property to go to the wife, including a 1974Monte Carlo Chevrolet automobile, household goods and personal effects, recited to be worth $18,000 altogether, and a list of items of personal property recited to be worth a total of $95,000 to go to the husband, including motor vehicles, farm machinery, aircraft, "all stock in Arnsperger Aviation, Inc.", and other items.It describes and gives to the husband a 52.17-acre tract of land in Chariton County, without assigning any value thereto, where the parties' residence is located.It recites that there is no non-marital property to be distributed.It provides for the husband to pay debts of the parties totaling $257,017.80.It further provides for the husband to pay to the wife maintenance of $250 per month and child support of $125 per month for each of two minor children, and for him to pay the court costs and his attorney fees.

Upon the basis of the foregoing evidence the trial court approved the property settlement as not unconscionable.

The trial court's approval of a property settlement must be predicated upon a finding of conscionability based upon a sufficient record of the "economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court,"§ 452.325(2), RSMo 1978, as will enable the court intelligently to adjudge of that matter.The court had before it in this case only the assets and liabilities of the parties, as shown in the contract.That was not even a full picture of the "economic circumstances" of the parties, not to speak of the other factors which must be taken into account in passing upon the property settlement agreement.For the scope of the inquiry into the conscionability of the agreement, the parties and the court are commended to Turpin v. Turpin, 570 S.W.2d 831, 834(Mo.App.1978);Rojas v. Rojas, 595 S.W.2d 729, 733-734(Mo.App.1980);Block v. Block, 593 S.W.2d 584(Mo.App.1979);Wilkerson v. Wilkerson, 555 S.W.2d 689(Mo.App.1977).Those cases emphatically deny perfunctoriness in the approval of property settlements.

Respondent fears that the investigation required by the above cases calls for a full-blown trial even in cases settled by agreement.Not so.The adversary aspects of the case should have been laid to rest when a property settlement is reached.No lengthy adversary proceeding is required.Much of the financial proof may be presented by way of schedules.The above cases impose upon the parties or the trial court no unreasonable burden.

As shown by the cases cited above, this court has taken, and has enjoined upon the trial courts, a somewhat paternalistic view of the dissolution proceedings.That is all the more true where the complaining party has not had the representation of independent adversary counsel, as shown by a lengthening list of cases.Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731(banc 1950);Seymour v. Seymour, 340 S.W.2d 652, 653(Mo.1960);McCarty v. McCarty, 300 S.W.2d 394, 395(Mo.1957);Riley v. Riley, 603 S.W.2d 32(Mo.App.1980);Block v. Block, supra;Daffin v. Daffin, 567 S.W.2d 672(Mo.App.1978).If the parties do not produce evidence which will enable the trial court to pass upon the property settlement by the statutory standards, the statute appears to contemplate the trial court's sua sponte request for additional evidence, § 452.325(2), supra.

Appellant wife makes a second complaint, that the trial court failed to set aside her separate property before dividing the marital property, as required by § 452.330(1)(3), RSMo 1978;In re Marriage of Brethauer, 566 S.W.2d 462, 464-465(Mo. banc 1978).We cannot rule this point on the record before us, for there is no evidence of any non-marital property.In fact, the property settlement agreement, which was the only evidence on the subject which the trial court had before it, recites that there is no non-marital property.However, upon setting aside the judgment approving the property settlement, reversing and remanding the same to the trial court...