Carter v. Carter, WD

• Court: Missouri Court of Appeals
• Writing for the Court: FENNER
• Citation: Carter v. Carter, 869 S.W.2d 822 (Mo. App. 1994)
• Decision Date: 01 February 1994
• Docket Number: No. WD,WD
• Parties: Janice M. CARTER, Appellant, v. Charles M. CARTER, Respondent. 47833.

Page 822

869 S.W.2d 822

Janice M. CARTER, Appellant, v. Charles M. CARTER, Respondent.

No. WD 47833.

Missouri Court of Appeals Western District.

Feb. 1, 1994.

Allen S. Russell, Kansas City, for appellant.

Thomas K. Thompson, Liberty, for respondent.

Before LOWENSTEIN, P.J., and TURNAGE and FENNER, JJ.

FENNER, Judge.

In this dissolution of marriage action, appellant, Janice M. Carter (Wife), appeals the Decree of Dissolution entered by the Circuit Court of Clay County, Missouri, with respect to the court's division of property and maintenance award. Custody, visitation, and child support are not at issue in this appeal. ¹

Appellant and respondent, Charles M. Carter (Husband), were married on October 16, 1982, and separated on August 18, 1991. Two children were born of the marriage: Lukas Michael Carter, born July 7, 1986, and Lauren Elizabeth Carter, born November 2, 1987.

Wife filed her petition for dissolution on August 26, 1991. A hearing took place on October 28th and 29th of 1992. The record reflects that the parties reached an agreement as to how to allocate the property and debt between them, and wanted to put this matter on the record at the hearing. At the beginning of the hearing, it was agreed that "Counsel could recite the property into the record and just get a confirmation that the parties agree." After testimony by Wife and Husband as to the agreements reached on custody, visitation and child support, Wife's attorney recited the parties' understanding as to the division of assets. In doing so, he referred to Wife's Exhibit Number 2 (Exhibit 2), which is a summary of assets. Wife's attorney noted that Exhibit 2 has numerous "markups and cross-outs and changes, but ... counsel are in agreement with respect to the adjustments that get down to, ... the proverbial bottom line." Wife's counsel proceeded to recite the agreement between the parties, which was as follows:

1. On page 2 of Exhibit 2, there were certain retirement assets, CD's, and savings bonds listed. The parties agreed that the handwritten numerals on that page accurately set forth the valuation of these assets. No oral record was made as to the specific assets or their values other than a general reference to Exhibit 2.

2. The proceeds from the sale of the marital residence, which are held in a money market account, are to go toward satisfying the guardian ad litem fees. Any remaining proceeds are to be split 50/50 between the parties.

3. As to the vehicles, Wife retains the Ford Bronco. Husband retains the Ford Taurus having a net value of $1000 (not reflected on the schedule). Husband retains the CJ-5 Jeep.

4. Schedule A sets forth the extent of Wife's non-marital assets.

5. Schedule B sets forth the extent of Husband's non-marital assets.

6. Schedule C sets forth the extent of Wife's marital personal property and household goods. On Schedule C, there are two typewritten columns representing each party's valuation of the particular item of property. Between the typewritten columns, there is a handwritten column which indicates the compromised values attributable to each of these items of property.

7. Schedule D sets forth the extent of Husband's marital property. However, certain instruments listed on Schedule D are to be awarded to Wife. If the handwritten numerals are on the left side of the two typewritten columns, those assets are to be awarded to Wife. If the handwritten numerals are listed in between the two typewritten columns, those assets are to be awarded to Husband.

8. Wife has net personal property of approximately $7,947. Husband has net personal property of approximately $8,215.

9. Some "minor adjustments" have been agreed to, and this is reflected in the cash payout to Wife.

10. In addition to IRA's, CD's, personal property, and vehicle, Wife has total property worth approximately $45,489. Husband has total property worth approximately $69,841 ($51,508 after certain debt obligations).

11. To equalize division of property and to satisfy retroactive child support, Husband will pay Wife $10,000. This amount represents (1) compensation for some expenses relating to residence after both parties have moved out; (2) $1,378 in insurance proceeds that Husband received and for which Wife had paid underlying medical expenses; (3) approximately $3,000 (because difference in values of underlying assets the parties were to have received was approximately $6,000); and (4) $4,772 in retroactive child support.

12. To pay the $10,000, Husband has until April 30, 1993, to take out loan against one of his 401(k) plans at Trans World Airlines, Inc. (TWA). The $10,000 sum shall not begin to bear interest until January 31, 1993, but shall bear interest after said date at 9% rate.

13. If by April 30, 1993, Husband is unable to effectuate loan from 401(k), then a Qualified Domestic Relations Order (QDRO) will be drafted and submitted to the court which would divide one of the assets in an amount which would compensate Wife for the $10,000 plus accrued interest.

14. There is one other retirement plan--non-marital portion attributable to some of that, but marital portion will be divided pursuant to QDRO which will be submitted to court.

15. Husband has scheduled and specified certain debt obligations that he has agreed to assume.

Counsel for both parties agreed that the above list represents the entirety of the agreement, and is a full and complete distribution of the parties' assets and liabilities. Exhibit 2 was admitted into evidence.

The court acknowledged that the parties "stipulate[d] to child custody, visitation and support, and to the division of property." Counsel for husband asked the judge, "Your Honor, do you want the parties to be put on the stand as to verifying the division of property?" The court responded, "No, I have the stipulation of counsel. It's not necessary." The court then proceeded, on October 29 1992, to consider the contested issues of attorney's fees, court costs, and maintenance.

At some point, a proposed Decree of Dissolution was prepared incorporating a Separation and Property Settlement Agreement (hereinafter "Settlement Agreement"). However, this Settlement Agreement was never signed by the parties. There is nothing in the record to indicate when the court received the proposed Decree.

The proposed Decree of Dissolution, incorporating the Settlement Agreement, became final and was entered as the Decree of Dissolution on January 20, 1993. In its Decree, the court stated:

The parties have acquired certain items of property and debt during the course of their marriage, and have entered into a Separation and Property Settlement Agreement that disposes of all the non-marital and marital property of the parties, apportions the marital debt, and sets forth provisions for custody, visitation and support of the parties' minor children. A copy of said Agreement has been provided to the Court. The Court has reviewed the parties' Agreement, and finds same to be not unconscionable, and in the best interests of the parties' minor children. Said agreement should therefore be approved, and incorporated into this Court's Decree of Dissolution.

Again, there was no written agreement signed by the parties as to the division of assets. There was, however, an oral agreement made on the record that was based on Exhibit 2.

Wife argues on appeal that the Settlement Agreement incorporated in the court's Decree differs from the agreement that Wife's counsel read into the record which was based on Exhibit 2. In her brief, appellant points out the following differences:

1. Schedule C of the Decree, which sets forth Wife's marital personal property and household goods, lists miscellaneous music books valued at $250 and records/tapes valued at $250. Wife claims that these items are non-marital in nature and that no value should have been assigned to the marital estate relating to these items. Wife claims that the only marital music books, records, or tapes are in Husband's possession and are set forth in Schedule D as his marital property. Wife's understanding of the agreement placed on the record is that the value to be attributed to the music books, records, and tapes in Husband's possession, listed on Schedule D, should be $400, not the $200 referenced on Schedule D of the Decree. [This court notes that Exhibit 2 shows a value of $200 for the music books, records, and tapes listed on Schedule D. Schedule D of Exhibit 2 also lists miscellaneous music books valued at $250 and records/tapes valued at $250, and indicates that these items are to go to Wife. Thus, in this regard, the Decree and Exhibit 2 are consistent.]

2. Schedule C of the Decree lists a Custom Banjo ECAbend with a value of $425. Schedule C also lists a Stewart-McDonald Banjo with a value of $550. Wife's understanding of the agreement placed on the record is that the two banjos listed in Schedule C are one in the same, and that the entry for the Stewart-McDonald Banjo and the value attributed to that banjo should have been removed from Schedule C. [This court notes that Schedule C of Exhibit 2 lists only the Custom Banjo ECAbend with a value of $425. However, Schedule D of Exhibit 2 indicates that the Stewart-McDonald Banjo, with a value of $550, is to go to Wife. Thus, the Decree and Exhibit 2 are consistent in this regard.]

3. Schedule C of the Decree provides that Wife was to receive a rocking chair. However, a rocking chair is also listed on Schedule B as Husband's non-marital property. Wife's understanding of the agreement placed on the record is that there is only one rocking chair owned by the parties and the agreement entered into the record (as identified in Exhibit 2) designates the rocker to go to Wife. [This court notes that on Schedule C of Exhibit 2 the rocking chair to which Wife refers is crossed out, and there is a notation next to the item indicating that the item is non-marital property. There are two listings of the rocking chair on ...