Estate of Warner, Matter of, No. 48576

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: KAROHL; PUDLOWSKI, P.J., and GAERTNER
• Citation: 687 S.W.2d 686
• Parties: In the Matter of the ESTATE OF Erna A. WARNER. Charles M. WARNER, Plaintiff-Respondent, Eileen C. Warner, Intervenor-Respondent, v. Charles F. WARNER, Personal Representative, Charles F. Warner & Nancy L. Warner, Individually as Legatees, Respondents-Appellants.
• Docket Number: No. 48576
• Decision Date: 12 March 1985

Page 686

687 S.W.2d 686 In the Matter of the ESTATE OF Erna A. WARNER.
Charles M. WARNER, Plaintiff-Respondent,
Eileen C. Warner, Intervenor-Respondent,
v.
Charles F. WARNER, Personal Representative, Charles F.
Warner & Nancy L. Warner, Individually as
Legatees, Respondents-Appellants. No. 48576. Missouri Court of Appeals,
Eastern District,
Division One. March 12, 1985.

Page 687

Allan F. Stewart, Clayton, for respondents-appellants.

Patrick J. Connaghan, St. Louis, for respondents.

KAROHL, Judge.

Respondents-appellants, personal representatives and legatees of Erna Warner, appeal probate court order determining title to real property. The court found petitioner Charles Warner succeeded to "full ownership of the property and full title was vested in him" at the time of the death of Erna Warner as the survivor of a tenancy by the entirety. After the death of Erna Warner, Charles Warner deeded his interest in the real estate to intervenor Eileen Warner.

Charles and Erna Warner were married in 1934. The legatees are children of Charles and Erna Warner. The subject real estate was conveyed to Charles and Erna Warner as husband and wife in 1964. In 1970 Charles obtained an ex parte decree of divorce in the State of Chihuahua, Republic of Mexico. Erna had previously filed a petition for separate maintenance in St. Louis County, Missouri. As a part of that proceeding she attempted to stop the Mexican divorce by obtaining a restraining order. Although the restraining order is dated before the Mexican divorce decree Charles claimed he was unable to stop the proceedings. ¹ After the Mexican decree Charles married Eileen Warner, once in Mexico and then later in Kansas.

In 1971 Erna refused to recognize the validity of the Mexican divorce and obtained a decree of separate maintenance from the circuit court in St. Louis County. Respondent husband Charles Warner did not appear and the decree was granted by default. There is no indication in the record that the validity or invalidity of the Mexican divorce was presented as an issue to the court. In 1974 Erna filed a motion to require Charles to make the maintenance payments to the court. Charles filed a motion to quash Erna's motion, a motion to vacate the separate maintenance decree based on the existence of the Mexican divorce and a cross-bill for dissolution of marriage. The trial court granted a dissolution of marriage and reduced the separate maintenance award of $600.00 a month to a dissolution maintenance award of $300.00 per month. Erna appealed. See In re Marriage of E.A.W., 573 S.W.2d 689 (Mo.App.1978). We there held that the trial court was not authorized to grant a dissolution of marriage in the same action in which it rendered a decree of separate maintenance but approved the reduction in the monthly award. We did not hold that the Missouri dissolution was barred by a prior Mexican divorce and the trial court ruling in that regard dissolved with the appellate opinion. From the record facts in that opinion it was said, "[t]he divorce was granted, however, and after marrying another woman, defendant moved to Kansas City." However this issue was never decided and on the issue of the validity of the Mexican divorce neither the principals of collateral estoppel or res judicata are applicable.

...