Ferguson v. Stott, 39942

• Decision Date: 31 July 1979
• Docket Number: No. 39942,39942
• Citation: 585 S.W.2d 541
• Parties: C. Dean FERGUSON, Plaintiff-Respondent, v. Marian Ferguson STOTT, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 541

585 S.W.2d 541

C. Dean FERGUSON, Plaintiff-Respondent, v. Marian Ferguson STOTT, Defendant-Appellant.

No. 39942.

Missouri Court of Appeals, Eastern District, Division Two.

July 31, 1979.

J. William Holliday, Kahoka, for defendant-appellant.

Tom B. Brown, Brown & Phillips, Edina, for plaintiff-respondent.

KELLY, Judge.

Appellant, Marian Ferguson Stott, defendant in the trial court, brings this appeal from an adverse judgment on her counterclaim whereby she prayed the trial court to set aside a property settlement she and the respondent, C. Dean Ferguson, her former husband, had entered into to dispose of their marital property in a dissolution of marriage proceeding, on the grounds that it had been induced by fraud practiced upon her by respondent.

The facts, briefly stated, were that Marian Ferguson Stott and C. Dean Ferguson were husband and wife for 27 years when their marriage was dissolved in December, 1974. It is uncontradicted that the marital difficulties leading to the dissolution of their marriage were caused by the wife's falling in love with another man who, at the time, was also married. A very short time after appellant's divorce became final she married this other man, who, in the interim, had also obtained a divorce from his spouse.

The divorce of the Fergusons was handled by an attorney known to both. In fact, when initially contacted, he had the daughter of the couple in his employ. At that time this counsel suggested they have other attorneys handle the matter for them. After their initial interview with counsel a reconciliation was effected, but it was of short duration and respondent set up an appointment for them with the same attorney, despite the fact he did not desire a divorce. A property settlement the one in issue was prepared and executed by the parties and at the dissolution hearing appellant executed a quit-claim deed to the real estate owned by the parties, conveying same to respondent. The property settlement was admitted into evidence at the dissolution hearing and made a part of the decree dissolving the parties' marriage. The date of the hearing and granting of the dissolution was December 18, 1974. On January 21, 1975, appellant entered into a marriage with Mr. Stott.

Because of a clerical error in the quit-claim deed of December 18, 1974, and the refusal of appellant to execute a second quit-claim deed to the same property curing this defect, respondent instituted this action in January, 1977, seeking an order of the court reforming the original quit-claim deed and compelling appellant to execute a new deed so that a proper description of the property conveyed in the original quit-claim deed should appear.

It was in this action that appellant filed her counterclaim.

The trial court entered a decree for the respondent on his cause of action and ordered the description of the property in the property settlement in the dissolution of marriage action be corrected; that appellant convey forthwith her right, title and interest in the described land and to execute any and all instruments necessary to effect and carry out properly such conveyance so respondent would enjoy a fee simple title in said property. Appellant has appealed from that portion of the judgment denying her counterclaim.

The scope of review in this case is controlled by the parameters set out in Murphy v. Carron, 536 S.W.2d 30, 32(1) (Mo. banc 1976), and the judgment of the trial court must be sustained unless there...