Gibson v. Gibson, WD

• Decision Date: 05 March 1985
• Docket Number: No. WD,WD
• Citation: 687 S.W.2d 274
• Parties: Annetta Louise GIBSON, Petitioner-Respondent, v. Max Hall GIBSON, Respondent-Appellant. 35859.
• Court: Missouri Court of Appeals

Page 274

687 S.W.2d 274

Annetta Louise GIBSON, Petitioner-Respondent, v. Max Hall GIBSON, Respondent-Appellant.

No. WD 35859.

Missouri Court of Appeals Western District.

March 5, 1985.

Joseph Y. DeCuyper, Donnie R. Davis, DeCuyper & Lee, Kansas City, for respondent-appellant.

Daniel M. Czamanske, Riverside, for petitioner-respondent.

Before TURNAGE, C.J., and SOMERVILLE and LOWENSTEIN, JJ.

TURNAGE, Chief Judge.

Annetta Gibson brought suit for specific performance of a property settlement agreement entered into with her former husband, Max Gibson. The court ordered Max to perform, and also ordered Max to pay attorney fees and costs.

Max contends that the court altered the parties' agreement; that Annetta pleaded an agreement different in terms from the one she sought to enforce; that the trial court lacked venue; that Annetta had an adequate remedy at law; and that Max should not have been assessed attorney fees and costs. Affirmed.

Prior to the dissolution of their marriage, Annetta and Max entered into a property settlement and separation agreement. By that agreement, Max agreed to pay Annetta contractual maintenance of $2,000 per month until 1987, and thereafter $1,800 per month until the year 2000. The agreement provided that the payments would continue in the event of Max's death, and to guarantee this, the agreement further provided that Max was to establish an insurance trust to be funded by decreasing term insurance in the amount of $200,000. These provisions of the property settlement agreement were incorporated into the dissolution decree. After the dissolution, the parties agreed that the insurance trust would be funded by whole life insurance policies in the amount of $180,000.

Pursuant to their agreement, Max executed an insurance trust in February of 1981. Annetta was satisfied with the trust agreement, except for the provision that Max retained the right to borrow, pledge, or use the cash value of the insurance policies placed in the trust. Annetta filed suit to require Max to perform the property settlement agreement, and alleged that to perform that agreement, the trust provision allowing Max to borrow, pledge, or use the cash value of the policies would have to be deleted. The court agreed and entered judgment ordering Max to remove that provision from the trust.

Max first contends that by requiring him to remove the provision in question, the court created a new agreement. The property settlement agreement provided for term insurance, which does not build cash value, but the parties later agreed that whole life policies, which do build cash value, could be substituted. Max thus argues that the property settlement agreement, as modified, contained nothing that would disallow Max the right to use the cash value of the policies.

Max's argument wholly misses the mark. The provision inserted by Max could at least partially defeat the trust purpose because Max could use the cash value as it accumulated and thus impair the security afforded by the insurance policies to pay maintenance in the event of his death before the year 2000. The court did not make a new agreement for the parties when it required Max to delete the provision in question, but in fact enforced the parties' agreement that Annetta have security in the form of life insurance policies.

Max next contends that Annetta sought to enforce an agreement different from the one she pleaded. Annetta's petition alleged that the cash value provision could limit the amount of cash available to pay maintenance if Max died. That is the agreement Annetta pleaded and sought to enforce, and it is the same...