Bloss v. Bloss

• Decision Date: 08 September 1952
• Docket Number: No. 1,No. 42816,42816,1
• Citation: 251 S.W.2d 78
• Parties: BLOSS v. BLOSS et al
• Court: Missouri Supreme Court

Page 78

251 S.W.2d 78

BLOSS v. BLOSS et al.

No. 42816.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1952.

Lewis F. Randolph, St. Joseph, for appellant.

Johnson E. Story, Cameron, O. J. Adams, Kingston, Robison & Miller, Maysville (Robison & Miller, Maysville, on the brief), for respondents.

VAN OSDOL, Commissioner.

In this action plaintiff, Gladys I. Bloss, seeks to set aside a separation agreement; to set aside a deed executed by her and her former husband, defendant Lawrence E. Bloss, to defendant Robert Bloss, father of the husband Lawrence; to partition the described land; and to restore to plaintiff an undivided interest in personalty. Prior to the execution of the deed, the record title to the described land, one hundred sixty acres in Caldwell County, was in Lawrence E. Bloss, defendant, and Gladys I. Bloss, plaintiff, who were then husband and wife. The conveyance was made pursuant to a contract or separation agreement between the parties, plaintiff Gladys and defendant Lawrence. The trial court, having heard the evidence, found and rendered judgment for defendants. Plaintiff has appealed.

Plaintiff and defendant Lawrence were separated in early 1950. Plaintiff engaged counsel and instituted a divorce proceeding. April 14, 1950, during the pendency of the divorce action and just prior to the rendition of a decree of divorce, Gladys and Lawrence entered into the separation agreement, the agreement reciting that the parties had encountered marital difficulties and were living separate and apart; that an action for divorce was pending; that they recognized there was no possibility of reconciliation; and that they desired to finally and completely settle their property rights. The instrument further recited,

'The parties have in no manner agreed upon the merits of any controversies existing between them with respect to the rights of either party to obtain a divorce from the other, or to offer and sustain any defense, or to offer any inducements to the other to obtain or not to obtain a divorce. It is understood and agreed, however, that either party may take whatever action he or she desires with respect to the action for divorce now pending.

'The sole purpose of this agreement is to define and determine the respective property rights of the parties and their financial rights and liabilities.'

In stipulating the settlement of their property rights, the parties agreed as follows,

'In full, complete and final discharge of all the obligations of debts, legal, equitable or otherwise, now existing or hereafter to exist on the part of the husband to support and maintain the wife, or to become responsible for any of her obligations for sustenance or for necessaries or for alimony, attorney's fees, support and statutory rights, including dower, and statutory rights of allowance, the husband agrees to pay and the wife agrees to accept the sum of Sixteen Hundred and Seventy-five Dollars; and the wife agrees to join with her husband in the execution and delivery of a General Warranty Deed covering and conveying the (described) property now held by them as husband and wife to Robert Bloss * * *.

'For the considerations herein named the parties expressly agree that each shall have in their own and sole right all property of every kind and character not herein before expressly provided for, but in addition the wife hereby relinquishes to and assigns to the husband all right, title and interest she has or may have in six government bonds now presently in the joint names of the husband and wife; and each party does now hereby forever acquit, discharge and release the other and his or her estate from each and every all ans singular rights, interests and demands which either might have or claim or demand against any property now or hereafter owned by either.'

Plaintiff-appellant alleged, and herein contends, the evidence conclusively shows the agreement and the conveyance were procured in the consummation of a scheme and design to defraud plaintiff of her interests in the described land and in described personalty; the contract and the conveyance were void because without consideration; the contract was entered into collusively to facilitate a divorce, and was consequently void because against public policy; and the agreement (and the conveyance pursuant thereto) was void because unfair, unjust and inequitable to plaintiff. Plaintiff-appellant asserts the amount, $1,675, which she received in settlement of her property interests and marital rights, was much less than the value of her interest in the land, the title to which had been vested in her and her husband by the entirety. Plaintiff-appellant further alleged and testified that she and her husband, working together, had accumulated the valuable personalty, some of which had been purchased by her with her own money, in all of which personalty she should now have an undivided half interest determined, adjudged and set over to her.

'Under the law of Missouri, as it exists at present, both husband and wife, being sui juris, may make a valid and binding agreement to a property settlement in contemplation of a divorce without submitting the same to the court which may thereafter hear and determine all questions in respect to the divorce.' Dorsett v. Dorsett, 232 Mo.App. 126, 90 S.W.2d 188, 194; State ex rel. Green v. James, 355 Mo. 223, 195 S.W.2d 669; Gaede v. Smith, 354 Mo. 738, 190 S.W.2d 931; Bishop v. Bishop, Mo.App., 162 S.W.2d 332. However, the authorities are numerous to the effect that any agreement that the defendant in a divorce action will not make a defense, or any agreement having the objective of dissolution of marriage, or designed to promote and facilitate a divorce, is void because against public policy. Blank v. Nohl, 112 Mo. 159, 20 S.W. 477, 18 L.R.A. 350. See also Gardine v. Cottey, 360 Mo. 681, 230 S.W.2d 731, 18 A.L.R.2d 1100; Jones v. Jones, 325 Mo. 1037, 30 S.W.2d 49; Welsh v. Welsh, 230 Mo.App. 1006, 93 S.W.2d 264; In re Means' Estate, Mo.App., 284 S.W. 186; Speck v. Dausman, 7 Mo.App. 165; 17 C.J.S., Contracts, Sec. 235, pp. 616-618. And even though an agreement in settlement of property rights by which a wife releases rights due to the marital relation may not be collusive, yet such an agreement should be free of fraud; supported by a valid consideration, and should be fair, just and equitable. Johns v. McNabb, Mo.Sup., 247 S.W.2d 640; Gardine v. Cottey, supra; In re Woods' Estate, 288 Mo. 588, 232 S.W. 671; Speiser v. Speiser, 188 Mo.App. 328, 175 S.W. 122.

Plaintiff Gladys and defendant Lawrence had been married June 28, 1936. Three children were born to the marriage. Lawrence and Gladys went to live with the husband's parents, defendants Robert and Nellie Bloss, upon their rented farm. The farm involved in this litigation was bought in 1940 for $4,000. Expert witnesses were of varied opinions of the value of the land at the time of the conveyance in 1950. Witnesses for plaintiff testified that in their opinion the land was then worth $9,600. Witnesses for defendants put its value at $5,600. Plaintiff testified that she and her husband worked on the farm and paid for it. Title, however, was taken in the name of defendant Robert and his wife, defendant Nellie. The farm was stocked with cattle, hogs and horses, which personalty, plaintiff testified, had been accumulated by and belonged to her and defendant Lawrence. She also stated the chickens on the Bloss farm were her property; and she said she had bought and paid for a radio, a stove, a refrigerator, a washing machine and some bedroom furniture used in the Bloss household.

August 14, 1943, Robert and Nellie executed a deed, reciting a consideration of 'one dollar and love and affection' to defendant Lawrence and plaintiff Gladys. The conveyance was not recorded until January 30, 1946. Robert, the father, also had a bank account in his own name until 1942....