Costello v. Costello, 45101
| Decision Date | 26 October 1982 |
| Docket Number | No. 45101,45101 |
| Citation | 643 S.W.2d 81 |
| Parties | Teddye W. COSTELLO, Appellant, v. Donald Eugene COSTELLO, Respondent. |
| Court | Missouri Court of Appeals |
Linda Murphy, Clayton, for appellant.
Raleigh Robinson, St. Louis, for respondent.
Wife appeals from an order of the trial court converting a decree of legal separation to a decree of dissolution.
In May of 1979, wife filed a verified amended petition for legal separation in which she alleged the marriage was irretrievably broken. Husband filed an answer admitting the marriage was irretrievably broken, but requested dissolution. After a hearing held on March 27, 1981, the trial court granted the parties a decree of legal separation. On August 21, 1981, more than 90 days after the decree of legal separation was entered, husband filed a motion to convert the decree to one of dissolution, pursuant to section 452.360.3, RSMo.1978. Wife filed an answer requesting that the motion be denied and stated that the "differences presently existing between the parties may be resolved." Both parties testified at a hearing held on September 22, 1981. The court found the marriage to be irretrievably broken and ordered the decree of legal separation be converted into a decree of dissolution. This appeal ensued.
As her sole point on appeal, wife alleges that the court erred in finding the marriage was irretrievably broken and in converting the decree of legal separation to a decree of dissolution. Her complaints are without merit and we affirm.
The wife's amended petition and husband's answer both admit under oath that the marriage was irretrievably broken. This constitutes a judicial admission on that issue. Rojas v. Rojas, 595 S.W.2d 729, 733 (Mo.App.1980). Indeed, a decree of legal separation may only be entered after a finding that the marriage is irretrievably broken. J.A.A. v. A.D.A., 581 S.W.2d 889, 893 (Mo.App.1979). Once the decree of legal separation had been entered it was unnecessary for the husband to relitigate the issue that the marriage was irretrievably broken.
Section 452.360.3, RSMo.1978, provides that "No earlier than ninety days after entry of a decree of legal separation, on motion of either party, the court may convert the decree of legal separation to a decree of dissolution of marriage." The purpose of § 452.360.3 is "to give the parties a 'cooling off' period" to encourage reconciliation. McRoberts v. McRoberts, 555 S.W.2d 682, 684 (Mo.App.1977).
By selecting the word "may" in § 452.360.3, the legislature intended to commit the decision to convert the legal separation to the sound discretion of the trial court. J.A.A. v. A.D.A., 581 S.W.2d 889, 894 (Mo.App.1979).
In Howard v. Howard, 583 S.W.2d 553, 556 (Mo.App.1979), this court stated that, "the discretion allowed the trial court in § 452.360.3 should extend only to determining whether there is a possibility of reconciliation." The trial court must...
To continue reading
Request your trial
-
Simpson v. Strong
...marriage was irretrievably broken in order to grant either a decree of dissolution or legal separation. See, e.g., Costello v. Costello, 643 S.W.2d 81, 82 (Mo. App.1982); J.A.A. v. A.D.A., 581 S.W.2d 889, 893 (Mo.App.1979); McRoberts, 555 S.W.2d at 683. In the absence of such a finding, dis......
-
Yun v. Yun, WD
...125, 127 (Mo.App.1992). Allegations in a petition, admitted in an answer, are judicial admissions on that issue. Costello v. Costello, 643 S.W.2d 81, 82 (Mo.App.1982). A judicial admission waives or dispenses with the production of evidence and "concedes for the purpose of the litigation th......
-
Marriage of Maupin, In re, 17653
...was not an issue at trial. Allegations in a petition, admitted in an answer, are judicial admissions on that issue. Costello v. Costello, 643 S.W.2d 81, 82 (Mo.App.1982). A judicial admission "waives or dispenses with the production of evidence and concedes for the purpose of the litigation......