Cohoon v. Cohoon

Decision Date23 June 1981
Docket NumberNo. 42889,42889
PartiesCharles R. COHOON, Respondent, v. Carol COHOON, et al., Appellants.
CourtMissouri Court of Appeals

Jack Gallego, Robert E. Edwards, Troy, for appellants.

Charles W. Neidner, St. Charles, for respondent.

REINHARD, Judge.

These appeals arise out of a judgment against the plaintiff to have certain transactions set aside as fraudulent conveyances and a judgment against the defendants on a counterclaim for an accounting. Plaintiff and defendants appeal.

The parties to this action, plaintiff Charles Cohoon, and defendants Carol Herring, Herschel Lawhorn and Clara Lawhorn, entered into an oral farming partnership in 1966. Carol is the Lawhorn's daughter and was married to Charles. The parties agreed that they were to share equally in partnership profits and losses, and to own partnership assets equally.

The parties contributed various assets to the partnership at its inception and throughout its existence. At the beginning of the partnership, the Cohoons contributed $8,000 in cash with $2,000 of that amount constituting either a loan or a gift from the Lawhorns. From 1966 to 1969, Charles worked at McDonnell-Douglas and his earnings of $23,000 a year were deposited in the partnership account. Carol was employed at various times during the existence of the partnership and her earnings were also deposited in the partnership account. The Lawhorns initially contributed $42,000 in cash, and farm machinery and equipment valued at between $16,000 and $40,000. All of the parties spent various amounts of time maintaining and operating the partnership farm. The living expenses of the Lawhorns, the Cohoons, and their two children were paid from the partnership account.

In May 1975, the marriage of Carol and Charles Cohoon was dissolved. As part of the property settlement, Carol agreed to pay Charles $12,000 for his interest in two buildings in Elsberry, Missouri. After the dissolution of the Cohoon's marriage, the parties decided to terminate the partnership and sell the assets. The farm equipment, livestock and 273 acres of partnership land were sold. After satisfying all debts, the balance was divided equally among the parties. At this time, the defendants demanded and Charles consented to allow a deduction of $3,365 from his share representing money previously received from the redemption of partnership stock. The parties also executed a contract for the sale of the remaining two tracts of partnership land containing 83 acres for $40,000.

On October 13, 1975, Carol conveyed the two buildings in Elsberry, Missouri, and her interest in the contract price for the two tracts of partnership land to her parents by quitclaim deeds. The next day she also quitclaimed her interest in a house in Elsberry, Missouri to them. Finally, in April 1976, Carol assigned a promissory note for $31,250 to her parents.

In November 1975, Charles filed suit against Carol for the $12,000 owing under the separation agreement, and in September 1976, the circuit court of Lincoln County, Missouri rendered judgment against her. Charles was unable to find any asset owned by Carol on which to execute. Therefore, he brought the present action to set aside the four transfers made by Carol to her parents and the defendants counterclaimed for an accounting. The trial court rendered judgment against plaintiff on his petition and against the defendants on their counterclaim.

The scope of review in a court-tried case is set out in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) which provides that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.

The first issue presented on appeal is whether the trial court erred in denying an accounting as demanded by the defendants. A suit for an accounting must be tried in two stages. The first stage is to determine whether there is any right to an accounting. Only if the trial court determines that there is a right to an accounting does the trial proceed to the second stage which is the actual accounting. State ex rel. Rowlett v. Wilson, 574 S.W.2d 376, 378 (Mo.1978). In the present case, the second stage was never reached as the trial court held that defendants were not entitled to an accounting because the parties had settled the partnership affairs when they divided the sale proceeds of the partnership assets. Such a private settlement precludes an accounting. Smith v. Lewis, 89 S.W.2d 563 (Mo.App.1935). Considering the evidence that throughout the partnership the parties contributed property, money and time in varying amounts with no specific agreement as to refunding any original contribution, that the partnership agreement provided for equal ownership and division of the profits, that the parties participated in some degree in the sale of the assets, that the receipts from the sale of the partnership assets were distributed equally, and that there was no demand made for other specific amounts, we find that there was substantial evidence to support the trial court's judgment.

The defendants argue that distribution of partnership assets is provided for by § 358.400, RSMo 1978, Uniform Partnership Act. However, this provision is made specifically subject to any...

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19 cases
  • Hallmark v. Stillings
    • United States
    • Missouri Court of Appeals
    • March 9, 1983
    ...the mortgage bore badges of fraud, and the trial court could readily have found the mortgage fraudulent and void. See Cohoon v. Cohoon, 627 S.W.2d 304, 307 (Mo.App.1981); Harrison v. Harrison, 339 S.W.2d 509, 515-516 (Mo.App.1960). The trial court also could have considered the fact that de......
  • Golub v. Cohen
    • United States
    • Court of Special Appeals of Maryland
    • May 3, 2001
    ...`will be given full benefit of securing discovery of all such legal evidence as will assist in such accounting'"); Cohoon v. Cohoon, 627 S.W.2d 304, 306 (Mo.App. 1981) ("A suit for an accounting must be tried in two stages. The first stage is to determine whether there is any right to an ac......
  • Dickinson v. Ronwin
    • United States
    • Missouri Court of Appeals
    • October 31, 1996
    ...& Hume Co., 275 Mo. 41, 204 S.W. 269, 271 (1918); McCluer v. White, 338 Mo. 1017, 93 S.W.2d 696, 700 (1936). In Cohoon v. Cohoon, 627 S.W.2d 304, 307 (Mo.App.E.D.1981), the appellate court referred to evidence that the debtor had sufficient property to pay the debt in affirming the trial co......
  • Wirth v. Wirth, 12484
    • United States
    • Missouri Court of Appeals
    • January 28, 1983
    ...of the real estate. The trial court so found. However, the judgment is not based upon a dissolution by agreement. Compare Cohoon v. Cohoon, 627 S.W.2d 304 (Mo.App.1981); Stuart v. Overland Medical Center, 510 S.W.2d 494 (Mo.App.1974). Both parties prayed for a dissolution under § 358.380. I......
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