In re the Marriage of: Gay Cole Thompson

• Decision Date: 04 October 2000
• Citation: 27 S.W.3d 502
• Parties: (Mo.App. S.D. 2000) In re the Marriage of: Gay Cole Thompson, Appellant, and Terry Randall Thompson, Respondent. 22514 & 22751
• Court: Missouri Court of Appeals

27 S.W.3d 502 (Mo.App. S.D. 2000)

In re the Marriage of: Gay Cole Thompson, Appellant, and Terry Randall Thompson, Respondent.

22514 & 22751

Missouri Court of Appeals Southern District

10/04/2000

Appeal From: Circuit Court of Camden County, Hon. Patricia F. Scott, Special Judge

Counsel for Appellant: Susan L. Ward and Mary E. Niemira

Counsel for Respondent: Theodore S. Schechter, Jeffrey S. Schechter, M. Adina Johnson and John E. Curran

Opinion Summary: None

Crow, and Garrison, J.J., concur.

Robert S. Barney, Chief Judge

Gay Cole Thompson ("Wife") appeals from the judgment dissolving her marriage to Terry Randall Thompson ("Husband"). Wife posits three points of trial court error relating to the trial court's division of marital properties. The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, it is against the manifest weight of the evidence, or it erroneously declares or applies the law. Wood v. Wood, 2 S.W.3d 134, 138 (Mo.App. 1999). We affirm.

Husband and Wife were married on November 5, 1988. One child was born of the marriage. As best we can glean from the record, Wife initiated the proceedings below by filing a "Petition for Legal Separation" in June of 1996 followed by a "Petition for Dissolution." Husband then filed an "Answer to [Wife's] Petition for Legal Separation and Counter Petition for Dissolution of Marriage." In due course, Wife filed a "Second Amended Petition for Dissolution." The matter proceeded to trial on October 28-31, 1997; February 24-26, 1998; and April 27-30, 1998.

On the final day of trial, the parties informed the trial court they had settled the property issues in contention. At that time the parties respectively testified to the details of their property settlement agreement. In aid of their testimony, the parties referred to two documents: Petitioner's Exhibit "88," a handwritten memo outlining the terms of the settlement; and Respondent's Exhibit "AW," a spreadsheet listing, inter alia, various financial accounts of the parties, their respective values and whether held in the sole name of a party or in the joint names of the parties.¹ Wife's attorney had Wife testify to each provision of Exhibit "88" and testify as to other properties that she was to receive under the agreement. As part of her testimony, and using Exhibit "AW" for reference, Wife identified certain financial accounts held by the parties and testified that under the agreement she would receive all of the accounts held in her sole name, with an approximate market value in excess of $l,750,000.00. Six of the accounts were held jointly by the parties. The market value of these accounts exceeded $l5,000,000.00. We discern that the division of these latter accounts constitutes the underlying basis for Wife's appeal. In setting out their property settlement agreement, Wife identified each of these accounts and testified as follows:

Q. [Wife's Attorney]: What is your understanding of the percent - - percentage of accounts that are listed there are you to receive?

A. [Wife]: I am to receive 30 percent of joint accounts. And there are six of them.

Q: And would you please list those accounts for the Court?

A: No. 1, No. 2, No. 5, No. 7, No. 8, and No. 9 [on Exhibit "AW"].

Q: Is it your understanding that those accounts are to be separated in kind? Do you know what that means?

A: Yes. Like trades, like stock.

Q: Okay. So, for example, if there is in any of those accounts a hundred shares of a certain stock - -

A: I would receive 30 of those.

Q: - - that they're to be separated 30 percent to you and 70 percent to your husband. Do you understand that?

A: Okay. Yes, sir, I do.

Wife also testified that she had refused to have appraisers or financial experts hired because she believed the appraisals by Husband's experts were sufficiently accurate. She stated that she was not pressured into making the agreement and that during the course of the negotiations she had talked to her sister on the phone concerning the proposed settlement. She also testified she knew she was entitled to go to trial on the property issues but she preferred to settle those issues, and she understood they had, indeed, been settled. Wife further testified there was nothing in the settlement that she had not agreed to and related that Husband was to receive all property not awarded her by the agreement. She stated that she was aware of all the property Husband would receive and she asked the court to approve the settlement. The final question posed to Wife is set out below:

Q [Husband's Attorney]: . . . I'm sure it's been explained to you that we are going to attempt to reduce this agreement to a more formal document; but in the event we do not or in the event we do and you do not sign the document, that once this settlement is spread on the record, the Court will enter this order whether you sign the document or if there is no document.

A [Wife]: All right.

Q: Do you understand that?

A: Okay.

Husband, in turn, testified that he was to receive the property not awarded Wife. He related that he thought the settlement was fair. He stated that he understood the agreement was being spread upon the record so it could be enforced even if it were not reduced to a more formal writing or in the event he refused to sign a more formal writing.

Following the hearing, the next important event in the case is memorialized by the following docket entry for May 1, 1998:

Per memo from Judge Scott. "Case called Parties appear in person & by attorney. G.A.L. appears. Evidence heard. Court approves oral settlement of parties & announces custody & visitation decision. Matter then under submission of Judgment within 15 days. Petitioner's attorney ordered to prepare same."

The record reflects that Wife's attorney never presented a formal judgment to the court as ordered. It is apparent that Wife instructed her attorneys to take no further action in the matter and hired new counsel. Her new counsel filed a "Motion to Amend or Modify Judgment/Decree of Dissolution or for New Trial . . . or to Withdraw [the trial court's] Submission of May 1, 1998," which the trial court overruled following a hearing. Wife then filed appeal number 22514, based on the May 1, 1998, docket entry of the trial court.²

On August 27, 1998, the trial court entered its judgment.³ In pertinent part, the judgment of the trial court approved and set forth the oral property settlement agreement which, inter alia, divided the joint accounts among the parties. Wife seasonably filed her second appeal, number 22751. Pursuant to Wife's motion, this court consolidated both appeals.⁴I.

Wife's first and third points are interrelated and will be addressed conjunctively. In Wife's first point on appeal, she claims trial court error because its judgment was "based on Exhibit 'AW' which was capable of seven different, equally plausible interpretations" and that the judgment was therefore "so vague and ambiguous, that it should not be enforced." In her third point on appeal, Wife claims the trial court erred "when it enforced the parties' oral property settlement because the agreement is based on Exhibit AW" and that Exhibit "AW" "is not capable of certain interpretation or meaning."⁵ We disagree.

We initially observe that "[g]enerally, a judgment must be definite and certain to be enforceable." Morgan v. Ackerman, 964 S.W.2d 865, 871 (Mo.App. 1998). In our review of Exhibit "AW" we discern that it is a document showing various items of real and personal properties and the respective values assigned to such properties, before and after taxes, commissions, etc. The fact that Exhibit "AW" valued the accounts in question by different methods is irrelevant. Any uncertainty or ambiguity contained in Exhibit "AW" is of little weight, since the oral separation agreement did not incorporate the exhibit as part of the contract nor did the parties' oral property settlement agreement specifically set out the value of these properties. While both Exhibit "AW" and Exhibit "88" were examined by the parties for reference while spreading the oral agreement upon the record, these exhibits were not formally incorporated into the agreement itself. Indeed, in its judgment, the trial court noted that any assigned values given to the joint accounts were "approximate net values, if known." More importantly, as explained, infra, the trial court made a percentage division of each of the six joint accounts.

As previously observed, the parties had come to an oral settlement agreement as to the property issues in the case and had spread the agreement upon the record.

In the administration of justice and the prompt dispatch of business, courts must and do act upon the statements of counsel and upon the stipulations of parties to pending causes. Where the parties have voluntarily entered into a stipulation, which appears fair and reasonable for the compromise and settlement of the issues of a pending cause, and where the stipulation is spread upon the record with the consent and approval of the court, as here, the parties are bound thereby and the court may thereafter, properly proceed to dispose of the case upon the basis of the pleadings, the stipulation and the admitted facts.

Peirick v. Peirick, 641 S.W.2d 195, 196 (Mo.App. 1982)(quoting Hansen v. Ryan, 186 S.W.2d 595, 600 (Mo. 1945)); see Markwardt v. Markwardt, 617 S.W.2d 461, 462 (Mo.App. 1981); see also Fair Mercantile Co. v. Union-May-Stern Co., 359 Mo. 385, 221 S.W.2d 751, 755 (1949)).

In recognition that the parties had reached an agreement as to their property issues, the trial court approved the agreement and attempted to memorialize the provisions of the oral agreement in its Judgment. In its Judgment, the court also made the following pronouncements relating to the agreement:

The Court having considered . . . the settlement of the nonmarital and marital property by the parties which has been...