Feinstein v. Feinstein, 54176
| Decision Date | 30 June 1989 |
| Docket Number | No. 54176,54176 |
| Citation | 778 S.W.2d 253 |
| Parties | Beatrice M. FEINSTEIN, Petitioner/Respondent, v. Bernard D. FEINSTEIN, Respondent/Appellant, and Karen Schwartz and David J. Feinstein, Defendants/Appellants, and Mordechai Schwartz, and Elan Schwartz, Jonathan Schwartz and Daniel Schwartz, Minors, Appellants. |
| Court | Missouri Court of Appeals |
Kenneth Lay, Robert Tucker, Michael James, Clayton, for Mordechai Schwartz, Elan Schwartz, Jonathan Schwartz, Daniel Schwartz.
Morris Stokes, Cary J. Mogerman, Clayton, and Irl Baris, St. Louis, for Bernard Feinstein, Karen Schwartz, David Feinstein.
Frank Susman, Katherine Butler, Clayton, for Beatrice Feinstein.
This is a dissolution action. Husband and wife were married on October 19, 1971. At that time, husband was 56 years of age and wife was 48. It was the second marriage for each of them. Wife had three children by her first husband, all of whom were adults when the parties married. Husband also had adult children from his first marriage, David and Karen, both of whom reside in St. Louis. Husband's daughter Karen is married. She and her husband, Mordechai Schwartz, have three minor children, Elan, Jonathan, and Daniel. 1 Husband and wife separated after the Thanksgiving holiday in 1984, and wife filed a petition for dissolution on December 12, 1984. In that petition, she named husband's daughter Karen as a defendant, and, in her first amended petition, she added husband's son David as a defendant. Wife joined husband's children as defendants based upon her allegations that marital property was in their "name, title, possession and/or control" and that husband asserted property acquired during the marriage belonged to his children. Husband filed a cross-petition for dissolution. The case proceeded to trial on June 3, 1986, with husband as respondent and his children, Karen and David, as defendants.
About one month after the trial had started, four days of actual trial, husband filed his third amended property statement in which he asserted his grandchildren had an "interest" in six parcels of the real property he controlled. Subsequently, on September 17, 1986, the court, on its own motion, raised the question of whether the grandchildren were indispensable parties who must be joined in the action. After a discussion of this issue on the record, the wife waived any interest she might have in those six parcels and the trial continued.
After "some 23 non-consecutive days of trial", some 250 exhibits and over 1900 pages of transcript, the case was submitted to the court. About seven months later, prior to a decree being entered, Mordechai, individually and as next friend of and on behalf of the grandchildren, filed a motion to intervene. The next day, husband, Karen and David filed a joint motion to declare a mistrial and to join Mordechai and the grandchildren (absentees) as parties. The court denied these motions and, subsequently, entered its decree of dissolution.
In its decree, the court expressly discredited husband and Karen. 2 The court found some of the real property controlled by husband had been owned by him prior to the marriage and was his separate property. The court found the remaining real and personal property to be marital property, and, of this marital property, the court awarded husband all the real property and some of the personal property for a combined value of about $2,000,000 and awarded wife personal property valued at about $1,000,000.
Appellants (husband, Karen and David) appeal the distribution of property, contending there was no marital property to distribute because the property in issue either belonged to third parties or was husband's separate property. Appellants also challenge the court's decision not to join absentees (Mordechai and the grandchildren) as parties, and challenge the award of attorney's fees to wife. Absentees contend the court erred in failing to join them as parties and in failing to appoint a guardian for the grandchildren. We affirm.
On appeal, absentees label themselves as "Proposed Intervenors." However, their Point and supporting arguments focus solely on compulsory joinder under Rule 52.04 rather than on mandatory or permissive intervention under rule 52.12. This labeling may be consistent with absentees' post-trial motion to intervene filed in and denied by the trial court. As we understand that motion, absentees contended they had an absolute right to intervene under Rule 52.12 because the "interest" in the property they claimed required their joinder as parties under Rule 52.04.
The phrasing of Rule 52.12 parallels that of Rule 52.04, and the two Rules are entwined. This, however, does not imply that an "interest" for the purpose of one is precisely the same as for the other, and absentees, neither at trial nor on appeal, have attempted to interpret these Rules to show a contrary implication. We need not address this issue here, however, because the facts in this case show that, if absentees were required to be joined under Rule 52.04, they had the right to intervene, under Rule 52.12, if that right were timely asserted. Rule 52.12. We, therefore, address only the joinder issue. If absentees fail to prevail on that issue, they would also fail as "proposed intervenors."
Wife raises an additional procedural issue which must be resolved. Absentees, as noted, contend the court erred in failing to join them as "indispensable" parties under Rule 52.04. Appellants, as part of their appeal, adopt the absentees' Point and arguments relating to joinder.
Wife attacks the absentees' standing to raise the joinder issue and questions the propriety of appellants' adoption of that issue. Wife contends absentees must be confined to challenging the denial of their motion to intervene. Only an aggrieved party to an action may take an appeal, wife argues, and, since absentees were never parties to the action below, wife reasons, they may not appeal the court's failure to join them as parties but may only appeal the court's denial of their motion to intervene. Moreover, wife argues, absentees fail to specify the ruling or rulings of the trial court creating this error. These arguments are not persuasive.
None of the parties have cited us a case, Missouri or federal, in which a court specifically and expressly addresses the point whether an absentee at trial may raise nonjoinder for the first time on appeal. Rule 55.27(g) provides that the defense of failure to join an indispensable party may be raised for the first time on appeal, but the use of the term "defense", along with the other defenses listed in the Rule with nonjoinder, arguably, may indicate the Rule pertains solely to those who were parties at trial. Be that as it may, the failure to join absentees as indispensable parties certainly may be raised by either one or all of the appellants, all parties below, or by us sua sponte. Neal v. Drennan, 640 S.W.2d 132, 136 (Mo.App.1982). Moreover, the issue of joining absentees was before the trial court during trial, and, if there is a failure to specify the ruling or rulings made by the trial court rejecting their joinder during trial, this failure is not fatal because the record makes it abundantly clear the trial court made a conscious choice not to join the absentees.
The property in which absentees claim an interest was, according to husband, derived from annual gifts husband made to them. Gifts, husband calculated in exhibits prepared for trial, which amounted to a total of $284,000.00 from 1970 to 1986. 3 The gifts, he said, were in the form of promissory notes, but, he said, he retained the actual funds and managed them. Husband calculated his investment of the funds in real estate and non-taxable securities resulted in sale proceeds, rents and interests aggregating, at the time of trial, to $571,075.86, which, he said, he held for absentees. Until the separation of Husband and Wife, the securities were maintained by husband in a joint account at A.G. Edwards bearing both Husband and Wife's names, but no other names. The court found the securities in this account to be marital property, and, as part of its distribution of marital property, the court specifically awarded wife some of the securities. It is absentees' claim of interest in these securities which is the basis of the compulsory joinder argued for by absentees and appellants.
Rule 52.04 governs whether this interest, as presented to the trial court, required absentees to be joined as parties. The application of the Rule by the trial court is a two step process. The court must first determine whether the absent person is needed for a just adjudication, and, if so, the absentee must be joined if feasible. Rule 52.04(a). If joinder is not feasible, the second part of Rule 52.04 comes into play. It provides the factors which must be considered by the court in deciding whether to proceed without the absentee or to dismiss the case. Rule 52.04(b). 4
Rule 52.04(a) applies when nonjoinder would have any of the following effects. First, when it would prevent complete relief from being accorded to those who are parties, Rule 52.04(a)(1), or, second, when the absentee "claims an interest relating to the subject of the action" and is so situated that his absence may "as a practical matter impair or impede his ability to protect that interest", Rule 52.04(a)(2)(i), or will "leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations." Rule 52.04(a)(2)(ii). The first joinder standard is designed to protect those who are already parties by requiring the presence of all persons who have an interest in the litigation so that relief may be complete. It also furthers...
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