Catron v. Catron, 25694

• Decision Date: 05 March 1973
• Docket Number: No. 25694,25694
• Citation: 492 S.W.2d 172
• Parties: Mary E. CATRON, Respondent, v. Reva Geraldine CATRON, Executrix of the Estate of Damon V. Catron, Deceased, Appellant.
• Court: Missouri Court of Appeals

Page 172

492 S.W.2d 172

Mary E. CATRON, Respondent, v. Reva Geraldine CATRON, Executrix of the Estate of Damon V.

Catron, Deceased, Appellant.

No. 25694.

Missouri Court of Appeals, Kansas City District.

March 5, 1973.

William D. Powell, Columbia, for appellant; Porter & Cleaveland, Columbia, of counsel.

Larry M. Woods, Columbia, for respondent; Sapp, Woods, Dannov & Orr, Columbia, and Roscoe S. Jones, Atlantic, Iowa, of counsel.

Before SHANGLER, C.J., and PRITCHARD, DIXON, SWOFFORD and WASSERSTROM, JJ.

PRITCHARD, Judge.

Upon disqualification of the probate judge and certification of the proceedings to the circuit court, respondent was successful in recovering on her claim against her ex-husband's estate upon a separation agreement providing 'for her support and maintenance $400.00 monthly until the death or remarriage of said Wife, whichever shall first occur.'

The main issue is the validity of the agreement to require the payment to respondent of the stipulated support and maintenance beyond deceased's death. Certain other contentions of appellant relate to the admissibility of documentary evidence received by the court, and these will be first considered.

Appellant says the 'AGREEMENT', Exhibit 1, was improperly admitted because its execution was not proved. The document contains on its last page and below and to the left of signatures of the parties this matter: 'APPROVED; Marion Hirschburg, Attorney for Husband (and) Roscoe S. Jones, Attorney for Wife.' Appellant claims that these persons are 'attesting' witnesses who, if available, must be called to prove up the writing, submitting that Exhibit 1 'must be considered as an attested private writing.' It is doubtful that these two attorneys who signed the document following the typed-in word 'Approved' are in fact attesting witnesses who would have to be called as witnesses to prove up the document under some of the cases and authority cited by appellant: Chaplain v. Briscoe, 19 Miss. 372, 382; and 32 C.J.S. Evidence § 739, p. 1074. The word 'attest' is not used, and it is a valid conclusion that the opposing counsel were merely approving the settlement of the property rights of the parties in connection with pending and contested divorce proceedings. 'To 'approve' or give 'approval' is in its essential and most obvious meaning to confirm, ratify, sanction, or consent to some act or thing done by another.' State ex rel. City of St. Louis v. Caulfield et al., 333 Mo. 270, 62 S.W.2d 818, 823. See also 3A Words and Phrases, 'Approval', 'Approve', 'Approved', pp. 500, 506, 512. But even if the two attorneys be considered as 'attesting witnesses' the old rule requiring that a subscribing witness must be called to prove the execution of an instrument, as required in Glasgow v. Ridgeley & Allen 11 Mo. 34, 39, was later relaxed in Bowling et al. v. Hax et al., 55 Mo. 446, 448, because the parties had since (Glasgow) been made competent witnesses. It is now sufficient that the execution of an instrument in writing be established by the testimony of some person familiar with the handwriting of the parties, 32 C.J.S. Evidence §§ 740, 741, pp. 1079, 1080, at least where there is no requirement of proof by subscribing witnesses as in instruments affecting real estate. Cf. Sections 442.260--442.300, RSMo 1969, V.A.M.S. Here, the son of Damon V. and Mary E. Catron, Damon Dwayne Catron, testified that he was acquainted with his parents' signatures, and those on Exhibit 1 were unequivocally theirs. Like identifications by Dewey Kuiken, a banker who did business with the Catrons, and by Mr. and Mrs. Conwell Johnson, longtime friends of the parties, were made. It is obvious that there is no merit in appellant's contention that the execution of Exhibit 1 was not sufficiently proved.

Exhibit 2 is a copy of the divorce decree of respondent and Damon V. Catron, granted March 30, 1965, in the District Court of Cass County, Iowa. Attached to it is the duly executed certificate of the clerk of the court, and a judge thereof, who is in turn certified to be a duly commissioned and sworn judge by the clerk. The certification is in accordance with 28 U.S.C.A., Sec. 1738, and the same is admissible under Sec. 490.130, RSMo 1969, V.A.M.S. There was no noncompliance with these federal and state statutes as appellant claims, and the objection to the document being admitted into evidence was properly overruled.

It is probably true, as appellant states, that the law of Iowa controls as to the validity or invalidity of the separation and property settlement agreement inasmuch as it unquestionably appears that the parties were residents of Iowa when the causes for the agreement arose, respondent was and still is a resident of Iowa, and the agreement was to be partly performed in that state. Kavanaugh v. Supreme Council of Royal League, 158 Mo.App. 234, 138 S.W. 359, 362. At least it would appear that the place of the most significant contact of the subject matter of the agreement would be the state of Iowa. 16 Am.Jur.2d, Conflict of Laws, Sections 38 and 39, pp. 56, et seq. It is, however, of no real importance whether the law of Iowa or the law of Missouri, where deceased resided at the time of his death, be applied as to the two remaining points. As will be demonstrated, the applicable law of the two states is practically identical on these issues.

Appellant says that the agreement, Exhibit 1, is void as against the public policy because it is promotive of divorce. The agreement, dated January 12, 1965, first recites that the parties, the wife of Atlantic, Iowa, and the husband of Clarksville, Maryland, had been married for 26 years; there were no children under the age of majority; the parties were separated and living apart since October 20, 1964; and had no expectation of resuming marital relations. It is further recited that the wife had filed in the District Court of Cass County, Iowa, a still pending petition for divorce, and the parties were desirous of settling their property rights and the wife's right to maintenance and support without resort to public adversary proceedings.

Paragraph I of the agreement, concerning its effective date, provides that if an absolute decree of divorce is granted the wife, the agreement shall be binding on the parties but if no decree is granted the wife, the agreement shall be null and void. Notwithstanding the matter of entry of a divorce decree, the husband agreed to pay temporary support and maintenance payments for the months of January, February and March, 1965, but not thereafter, and the temporary payments should cease if a decree of divorce was entered prior to the end of the three month period.

Paragraph III of the agreement provides for the division of the property of the parties. Paragraphs IV, V and VI provide for future waiver of the respective rights of the parties in each other's property, 'provided, however, that the Husband, at all times retains in his possession property sufficient to reasonably satisfy the obligations imposed upon him under the terms of this agreement.' Paragraph VII, which is in issue under Point IV of appellant's brief, provides that 'The Husband shall, upon the granting of a decree of divorce, pay the Wife for her support and maintenance $400.00 monthly until the death or remarriage of said Wife, whichever shall first occur.' All payments were to be made to the wife at 1825 Bryn Mawr Circle, Atlantic, Iowa (which was real property set over to the wife). Paragraph VIII provides for waiver of or release from the obligation for alimony, support, maintenance, attorney fees, or court costs, arising out of the marital relationship of the parties. The husband agreed, by Paragraph IX, to maintain an existing $5,000.00 insurance policy on his life, payable to the wife on his death, and should he fail to do so his estate would be liable to her if she survived him.

Paragraph X of the agreement provides that 'The Husband will pay to Jones, Cambridge, Carl, and Howard, Wife's counsel, the sum of $1,500.00 attorney fees, payment to be made at time of entry of final divorce decree', and all court costs of the pending divorce action. One other relevant provision of the agreement is Paragraph XIII, 'CONSTRUCTION This agreement is not intended, nor shall it be construed, to be an agreement for divorce or separate maintenance.'

Arguing the point of voidness, appellant first says that Paragraph I of the agreement conditions its legal effect upon respondent's procuring a divorce, which is an express indication of the sole purpose of the agreement, 'that being a private policy of insurance to guarantee and encourage the procurement of the divorce.' Read fairly and as a whole, the agreement is not conditioned upon the procurement of a divorce. Rather, it is a document settling the property rights and providing for what might be a legal duty of the husband to support the wife in contemplation of a divorce, or in the event of an absolute divorce between these separated spouses who had no expectation of resuming marital relations as recited in the agreement. In Iowa, it has been long held that 'The parties may stipulate as to their property rights in case a divorce is granted, if fair and in good faith and reasonable. Slattery v. Slattery, 139 Iowa 419, 422, 116 N.W. 608.' (Emphasis added.) Chambers v. Porter, Iowa, 183 N.W. 431, 433(3). In Gould v. Gunn, 161 Iowa 155, 140 N.W. 380, in May of 1900, before a decree of divorce was granted on or about June 2, 1900, the parties entered into a contract for the division of their property: 'In case a suit for divorce shall be brought by either party and a divorce is decreed by the court, it is stipulated between said parties that the decree shall award all the property, real and personal, now belonging to and held by the said parties, jointly or separately, to * * *.' (Mrs. Gould and the children jointly with right of survivorship.) Certain inventions or patents were...