Corder v. Corder

• Decision Date: 31 January 1977
• Docket Number: Nos. KCD,s. KCD
• Citation: 546 S.W.2d 798
• Parties: Georgia H. CORDER, Appellant-Respondent, v. Nathan CORDER, Respondent-Appellant. 27665, KCD 27956.
• Court: Missouri Court of Appeals

Page 798

546 S.W.2d 798

Georgia H. CORDER, Appellant-Respondent, v. Nathan CORDER, Respondent-Appellant.

Nos. KCD 27665, KCD 27956.

Missouri Court of Appeals, Kansas City District.

Jan. 31, 1977.

Charlotte P. Thayer, Thayer, Gum, Ernst Y. Wickert, Grandview, for respondent-appellant.

Robert W. Spangler, Robert B. Reeser, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, for appellant-respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

This is a dissolution of marriage proceeding involving cross-appeals. Neither party questions the dissolution of the marriage; however, the opposite is true with respect to all other provisions of the decree.

At the very threshold of appellate review this court is faced with a basic question of decisive significance. Does jurisdiction lie in this court to entertain the cross-appeals? Although neither party has questioned this court's jurisdiction, it may not be conferred by waiver, silence, acquiescence, or consent, and it is incumbent upon this court to sua sponte inquire into and determine whther it has jurisdiction. Kansas City Power & Light Co. v. Kansas City, 426 S.W.2d 105, 107 (Mo.1968); L. F. H. v. R. L. H., 543 S.W.2d 520, handed down October 5, 1976, by the Missouri Court of Appeals, St. Louis District; and Taney County v. Addington, 296 S.W.2d 129, 129(1) (Mo.App.1956).

The vexing question of whether jurisdiction lies in this court to entertain the cross-appeals emerges as follows: The family home, 'Lot 91, Silver Lake, a subdivision in Cass County, Missouri', was acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act (§§ 452.300, et seq., RSMo Supp. 1973), and title thereto was vested in the wife and husband as tenants by the entirety. All furnishings and furniture therein, and all other personal property not otherwise specifically mentioned, was apparently acquired subsequent to the marriage but prior to the effective date of the Dissolution of Marriage Act and treated as owned by the wife and husband as tenants by the entirety. The decree below contained, inter alia, the following provision: 'That the following described real estate, to-wit: Lot 91, Silver Lake, a subdivision in Cass County, Missouri, together with all furnishings and furniture located therein and all other personal property are hereby declared to be marital property; that Petitioner and Respondent shall each own an undivided one half (1/2) interest therein as tenants in common.' A colloquy between the trial court and counsel occurred prior to entry of the decree with respect to the real property, at which time the trial court stated: 'I don't care what they do with it. They each have a half interest in it. I'm going to dissolve the marriage, leave them right where the real estate law put them which is the way it should be.'

Notwithstanding the fact that the wife does not question this court's jurisdiction to entertain the cross-appeals, she vigorously contends, among other points relied upon, that the trial court's purported division of 'marital property' lacked 'finality' and did not constitute a 'just' division as contemplated in and commanded by Section 452.330, RSMo Supp.1973.

It is appropriate at this point to quote Section 452.330, supra, in full in order to put the jurisdictional question in proper perspective:

'1. In a proceeding for nonretroactive invalidity, dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(2) The value of the property set apart to each spouse:

(3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and

(4) The conduct of the parties during the marriage.

'2. For purposes of sections 452.300 to 452.415 only, 'marital property' means all property acquired by either spouse subsequent to the marriage except:

(1) Property acquired by gift, bequest, devise or descent;

(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

(3) Property acquired by a spouse after a decree of legal separation;

(4) Property excluded by valid agreement of the parties; and

(5) The increase in value of property acquired prior to the marriage.

'3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of coownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.

'4. The court's order as it affects distribution of marital property shall be a final order not subject to modification.

'5. A certified copy of any decree of court affecting title to real estate shall forthwith be filed for record in the office of the recorder of deeds of the county and state in which the real estate is situate by the clerk of the court in which the decree was made, and the filing fees shall be taxed as costs in the cause.' (Emphasis added.)

The husband counters the wife's assertions that the purported division of 'marital property' lacked 'finality' and did not constitute a 'just' division as contemplated in and commanded by Section 452.330, supra, with the following argument. Under 'prior law, upon divorce, any property held in tenancy by the entirety, is converted to a tenancy in common with an undivided 1/2 interest in each party.' He cites Allan v. Allan, 364 S.W.2d 578, 582 (Mo.1963), and Section 442.450, RSMo 1969, to support this statement with respect to the real property. Although not cited by the husband, Nye v. James, 373 S.W.2d 655, 659 (Mo.App.1963), supports the statement with respect to the personal property. As a capstone, the husband argues that any division of 'marital property' under Section 452.330, supra, giving either spouse any interest other or greater than an undivided one-half (1/2) interest as tenants in common in property which was acquired as tenants by the entirety prior to the effective date of Section 452.330, supra, 'would be unconstitutional in that it would operate to divest vested rights, impair obligation of contract, and deprive persons of property without due process of law.' In support thereof the husband cites various provisions of the state and federal constitutions, namely: Missouri Constitution, Art. I, §§ 10 (due process) and 13 (prohibiting the enactment of laws 'impairing the obligation of contracts' or which are 'retrospective' in their 'operation'); and U.S. Constitution, Art. I, § 10 (prohibiting any state from passing any law 'impairing the Obligation of Contracts') and Amend. XIV, § 1 (due process). At this juncture it is important to take cognizance of the true nature and thrust of the husband's constitutional argument. He does not contend that Section 452.330, supra, is unconstitutional. He does contend however that construing Section 452.330, supra, as being applicable to property acquired as tenants by the entirety prior to its effective date would be unconstitutional. See McManus v. Park, 287 Mo. 109, 229 S.W. 211 (1921).

As the controversial provision of the decree purported to do nothing more than declare that the spouses each owned an undivided one-half (1/2) interest in the 'marital property' as tenants in common, as would have occurred by operation of law prior to the effective date of Section 452.330, supra, there was no division of 'matital property' (as hereafter discussed) as contemplated in and commanded by Section 452.330, supra, unless the property, by virtue of the date it was acquired, was exempt from the control and application of Section 452.330, supra, because of the constitutional grounds raised by the husband. If a division of the 'marital property' as required by and envisioned in Section 452.330, supra, was not precluded on constitutional grounds, then the trial court did not exhaust its jurisdiction and the decree was not a final judgment or order and was not appealable. L. F. H. v. R. L. H., supra; Pendleton v. Pendleton, 532 S.W.2d 905, 906 (Mo.App.1976); Section 512.020, RSMo 1969; and Rules 81.01 and 81.04. As pointed out in Pendleton v. Pendleton, supra, at 906, and quoted with approval in L. F. H. v. R. L. H., supra, a trial court cannot 'abdicate its jurisdiction to decide the parties' property rights. . . .'

This court first turns to the husband's premise that constitutional considerations place the 'marital property' in question beyond the reach of Section 452.330, supra, because of its acquisition date. It has been held in this state, as well as in other jurisdictions, that the marital relation is subject in all respects to the reasonable exercise of the state's police power. Brawner v. Brawner, 327 S.W.2d 808, 815 (Mo. banc 1959), cert. denied 361 U.S. 964, 80 S.Ct. 595, 4 L.Ed.2d 546 (1960); and Rothman v. Rothman, 65 N.J. 219, 320 A.2d 496, 501 (1974). As cogently stated in Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654, 657 (1888), '(m)arriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than...