Block v. Block

• Decision Date: 31 December 1979
• Docket Number: No. KCD30614,KCD30614
• Citation: 593 S.W.2d 584
• Parties: Lynne Joanne BLOCK, Petitioner-Appellant, v. Jerome Edward BLOCK, Petitioner-Respondent.
• Court: Missouri Court of Appeals

Page 584

593 S.W.2d 584

Lynne Joanne BLOCK, Petitioner-Appellant, v. Jerome Edward BLOCK, Petitioner-Respondent.

No. KCD30614.

Missouri Court of Appeals, Western District.

Dec. 31, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 4, 1980.

Application to Transfer Denied March 11, 1980.

Allan W. Zimmerman, Kansas City, for petitioner-appellant.

Hendren & Andrae by Alex Bartlett, Jefferson City, for petitioner-respondent.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

DIXON, Presiding Judge.

By a late notice of appeal, the wife appeals from the provisions of a dissolution judgment finding a property settlement "conscionable."

The substantive issue to be decided is whether or not the trial court properly determined the conscionability of a property settlement agreement pursuant to the terms of § 452.325(2) RSMo 1978.

Before addressing the substantive issue, the husband's procedural contentions with respect to the propriety of the appeal must be resolved. The husband first contends that this court's order permitting the late notice of appeal was inappropriate. He argues that under the provisions of Rule 81.07(a), the entire process of applying for and concluding the filing of a late appeal must be accomplished within the six months mentioned in the rule.

Factually, the dissolution decree was entered in this case on June 6, 1978. On December 4, 1978, the wife filed in this court an application to permit filing of a late notice of appeal. Thereafter, present counsel for the husband entered their appearance and requested time for the filing of suggestions in opposition to the granting of the motion for late appeal. Those suggestions were filed on December 20. On December 28, 1978, the court granted the leave to file a late notice of appeal, and the notice of appeal was thereafter filed on the 4th day of January, 1979.

Although the husband argues that the rule requires all of the proceedings to be accomplished within the six month period, the second premise of his argument is that the words of the rule, "such final judgment," refer to the date upon which the decree was entered and not to the date when that decree became a final decree thirty days later. Thus, in the factual posture of this case, it is unnecessary to decide the contention with respect to the necessity for completion of all of the steps for perfection of a late notice of appeal within six months if the issue can be resolved by addressing the rule language concerning finality of the judgment.

The husband argues that the rule does not say six months after the judgment is final but emphasizes the slightly different language of six months after final judgment. No case has been found addressing the specific issue, but it appears that the intent and purpose of the rule is to provide a six month grace period within which an appellate court may, by leave, permit the filing of a notice of appeal. The question of interpretation suggested by the husband's argument would restrict the period within which a late notice of appeal could be filed to a five-month period after the judgment became final. The effect of the husband's argument would be to deprive the word, "final," of any meaning for, if the rule was intended to apply from the date the judgment or decree was entered, then it would have sufficed to simply say six months after judgment. To give any effect or meaning to the word, "final," it must mean the period prescribed by Rule 81.05(a) within which a judgment becomes a final judgment. So interpreted, the issue is resolved contrary to the husband's contention and this court's order permitting the late notice of appeal was appropriate and vested this court with jurisdiction of this appeal.

The husband further contends that the wife's appeal is improper because she is not an aggrieved party, citing § 512.020 RSMo 1978, and case law interpreting that statute. The husband strongly urges that upon the facts of this case the wife is not an aggrieved party and may not appeal the trial court decree. The resolution of this issue requires some statement of the factual background leading to the decree.

The wife and the husband filed a pleading denominated a "joint petition for dissolution." The petition was filed by an attorney named Robert L. Riley. The status of this lawyer as to the representation of the parties is not clear from the record. At one point, he appears as counsel for both the husband and the wife, but in the decree itself, he is not referred to as representing both of the parties. Nonetheless, the petition was heard with Riley, the wife, and the husband all present, Riley presenting the evidence of the wife on direct and likewise presenting the evidence of the husband on direct examination. It seems apparent that he was engaged in a dual capacity in the handling of the parties' dissolution litigation. The petition requested the court to enter a decree dissolving the marriage, granting custody of the children of the marriage to the wife, providing support allowances for the children, maintenance for the wife, and approval of the property settlement which was attached to the dubious document referred to as a joint petition.

At the hearing of the case, a bare minimum of testimony was offered, the pertinent parts of which will be subsequently discussed. After the wife and the husband had both testified, the trial court entered a decree which afforded the wife all of the relief that she had requested in her petition and declared that the property settlement was "conscionable." The husband forcefully argues that this factual background brings the wife's appeal squarely within a line of cases which have denied the right of appeal in cases where the purported appellant has been granted relief sought in the trial court. The cases cited are as follows: In re Marriage of Richardson, 540 S.W.2d 227 (Mo.App.1976); State ex rel. Green v. James, 355 Mo. 223, 195 S.W.2d 669 (banc 1946); Lipsey v. Lipsey, 464 S.W.2d 529 (Mo.App.1971).

Only Richardson, supra, was decided under the present dissolution law. It recognizes the bifurcated nature of a judgment under the present dissolution statute and holds consonant with the statute that when dissolution is granted to the party requesting it, no appeal from the granting of that relief is available to the party requesting the dissolution. The other portions of the relief in Richardson were held properly severed for separate consideration. The other cases cited are instances of divorces and ancillary relief under the old divorce procedure. Lipsey, supra, involves a case where a father sought to recover custody for his parents as against a natural mother. State ex rel. Green, supra, turns on the issue of jurisdiction to vacate a divorce decree after the term of its entry.

There can be no question but that the cases cited declared, as a rule of procedure, that a party who has obtained the relief sought cannot appeal. At first blush, the application of the rule to the facts of this case would appear appropriate. However, none of the cases cited involved the precise issue raised by the wife in this case, and they are thus not controlling in the sense that the precise and exact question is foreclosed by those cases. The issue which the wife raises is not the relief which she sought but the manner in which the relief was given. A situation more analogous to the instant case is found in Farrell v. DeClue, 382 S.W.2d 462 (Mo.App.1964). There a default judgment was entered for plaintiff and a motion for new trial sustained. The appeal of plaintiff was determined to be premature. Upon the retrial, the plaintiff recovered a verdict for a lesser amount and appealed contending that the trial court procedure in setting aside the default was error. Despite the verdict in plaintiff's favor, the court held plaintiff was aggrieved by the procedural error in setting aside the original default and ordered it reinstated. The court said:

"Otherwise the plaintiff could never seek redress for the conceded infringement or denial of her legal rights which took place when the trial court abused its discretion by setting aside the default judgment without any proof to support the motion." Id. at 466.

Farrell, supra, is faithful to the rationale of the cases defining aggrievement as suffering from an infringement or denial of legal rights.

The statute in pertinent part is as follows:

"(T)he terms of the separation agreement, except terms providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering 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, that the separation agreement is unconscionable." 452.325.2 RSMo 1978.

It has no application except in the circumstance where a property settlement has been arrived at and is presented to the court as a part of the dissolution proceedings. It is thus apparent that the statute will apply only in cases which have no real contest between the parties and in which the court is being asked only to approve what the parties have already agreed upon, both with respect to the dissolution and with respect to the property. The statute nonetheless requires that the trial court find in those circumstances that the dissolution property settlement is conscionable. If the husband's position were well taken, then in no circumstances to which the statute applied could there be a review of the trial court action in approving the property settlement as conscionable. As will be later noted, the apparent purpose of this statute, and particularly to the provision concerning the necessity of review by the trial court of the property settlement, is to put at rest questions of overreaching and fraud in the settlement of property questions. It, therefore, requires some determination by the trial court based on a factual...