Fields v. Fields, KCD

• Decision Date: 29 June 1979
• Docket Number: No. KCD,KCD
• Parties: Beverly FIELDS, Respondent, v. Wendell FIELDS, Appellant. 30067.
• Court: Missouri Court of Appeals

Page 163

584 S.W.2d 163

Beverly FIELDS, Respondent, v. Wendell FIELDS, Appellant.

No. KCD 30067.

Missouri Court of Appeals, Western District.

June 29, 1979.

L. E. Atherton, Milan, for appellant.

R. Max Humphreys, Trenton, for respondent.

Before SHANGLER, P. J., and WASSERSTROM and CLARK, JJ.

CLARK, Judge.

Wendell Fields appeals the judgment which dissolved his marriage to Beverly Fields and raises issues regarding designation and division of marital property by the trial court.

Wendell married Beverly, twenty years his junior, in 1961. Although children had previously been born to each and three additional children were born of this union, no questions of support or custody are raised and further reference to progeny of the parties is unnecessary.

The parties made their marital home on a farm comprising approximately 640 acres which Wendell had acquired by inheritance before the marriage. To this was added 110 acres of contiguous land purchased during the marriage. Also acquired was a residence in Chillicothe bought in 1967 and rented for income. Primary support to maintain the family was derived from farming operations. This had been Wendell's occupation before the marriage. To some extent, Beverly assisted with work in the fields and operated vehicles and machinery as well as performing household duties. She also worked at a food processing plant for wages from 1968 to 1972.

Wendell's son of a former marriage died in 1969 and Wendell received benefits paid as proceeds from policies of insurance on the life of the son. The amount of insurance was not disclosed by the evidence. Wendell contended the insurance proceeds were used to purchase the 110-acre farm and a certificate of deposit in the amount of $5000.00. The record fails to disclose the title and registration of ownership of either.

Somewhat by chance, Beverly commenced breeding dogs and gradually developed a business in the breeding and sale of registered dogs which, during the years 1971 to 1976, had gross sales ranging from $8019.00 to $17,972.00 and net profits of $565.00 to $8360.00. At the date of separation, sixty dogs remained. Registration papers on the dogs were destroyed accidentally in a fire and the dogs were thereafter of doubtful value as those with whom the dogs were subsequently placed were unwilling to pay full consideration without documents of pedigree. Beverly did, from time to time before and after the separation, receive checks to apply on the sale prices for dogs delivered, but the amounts were not established by the evidence.

Separations of the parties occurred from time to time during the marriage on which occasions Beverly left the home to visit or reside elsewhere. She acknowledged marital misconduct with male friends during these interludes and also while still at home. Such was apparently a prime source of final estrangement when the parties separated for the last time December 11, 1976.

By a judgment entered October 31, 1977, the court ordered dissolution of the marriage The judgment included no finding as to values of particular assets, no designation of which assets were marital property and which were non-marital property and no indication of the extent to which assets allotted to either spouse included non-marital property set apart as the separate property of that spouse. The judgment did, however, include a finding "(that) the net worth of the parties, including marital and non-marital property is approximately Two Hundred Thousand Dollars ($200,000.00) and that approximately one-half of that total is attributable to marital property accumulated over the period of the marriage."

awarded custody of the children to Wendell and granted neither maintenance nor support. Purported disposition of property was covered by an order awarding "all property mentioned in the evidence" to Wendell except certain items set apart to Beverly. The assets assigned to her were the Chillicothe house, a certificate of deposit bearing her name, a pickup truck titled in her name and clothing and personal effects.

Wendell filed his motion for new trial which motion was overruled November 28, 1977 after hearing. No appeal was lodged from that order or from the October 31, 1977 judgment. On December 20, 1977, Beverly filed a "Motion To Correct Judgment Entry" alleging that the judgment of October 31, 1977 had inadvertently omitted an award to her of $15,000.00 cash. Such motion was taken up by the court on January 23, 1978 and upon a finding "that the Judgment Entry heretofore entered was erroneous and not showing that judgment was rendered against Respondent and in favor of Petitioner for the sum of Fifteen Thousand Dollars ($15,000.00) in addition to the other property set aside to Petitioner," the court amended the prior judgment to award Beverly $15,000.00.

The entry of January 23, 1978 was made as a complete judgment incorporating all of the findings and orders of the earlier entry and differing only in the addition of the cash award to Beverly. As this appeal is taken pursuant to a special order of this court issued under Rule 81.07(a) and within six months of the rendition of the original judgment, it is unnecessary to decide, as to the identical provisions of both judgments, which is the subject of review on appellant's points of error common to both entries. Initial inquiry must first be made, however, to evaluate the validity of the attempted correction nunc pro tunc adding the cash allowance of which appellant complains.

An entry of judgment may be corrected to remedy a clerical error or mistake which resulted in an entry that did not actually reflect the judgment rendered. Wiseman v. Lehmann, 464 S.W.2d 539 (Mo.App.1971). The entry correcting a clerical error cannot be made, however, unless supported by some writing in the record which shows the judgment as actually rendered. Van Noy v. Huston, 448 S.W.2d 622 (Mo.App.1969). A correcting entry may not be employed to correct judicial errors, mistakes or oversights nor may it be used to enter a different judgment even though the judgment rendered was not the judgment the judge intended. Van Noy v. Huston, supra. In case of doubt, the court may look to the entire record, including pleadings and process, to ascertain the judgment actually rendered as contrasted with the judgment entered. First Nat. Bk. of Collinsville v. Goldfarb, 527 S.W.2d 427 (Mo.App.1975).

Neither respondent's motion nor the court's order before us allege or refer to any writing, notation or memorandum relied on to support the amendment adding the award of $15,000.00 to Beverly. As the burden is on the party seeking correction to establish the true nature of the judgment rendered, City of Ferguson v. Nelson, 438 S.W.2d 249 (Mo.1969), absence of such basis in the record to support the corrective entry precludes according recognition to the additional cash award. Aronberg v. Aronberg, 316 S.W.2d 675 (Mo.App.1958). For purposes of this appeal, the judgment in the case will be that rendered October 31, 1977 and restated January 23, 1978, exclusive of the cash award to Beverly.

The judgment of October 31, 1977 purported to set aside to the parties "all property Wendell challenges the result as to property division in this case on two grounds, the second of which includes six sub-points. ¹ None preserves anything for appellate review as they fail to state wherein and why claim is made that the trial court erred. From consideration of the judgment entry as noted above, however, failure of the trial court to exhaust its jurisdiction appears to be the threshold issue. As this appeal would, in such event, be premature, the issue of property disposition must be considered sua sponte to determine if we have jurisdiction to review the judgment. Oasis Car Wash, Inc. v. First North City Bank, 558 S.W.2d 683 (Mo.App.1977).

mentioned in the evidence," a phrase which would encompass both marital and non-marital assets found by the court to be of...