Keim v. Keim

• Court: Missouri Court of Appeals
• Writing for the Court: Before CRANDALL, P.J., PUDLOWSKI; DON W. KENNEDY
• Citation: Keim v. Keim, 676 S.W.2d 72 (Mo. App. 1984)
• Decision Date: 21 August 1984
• Docket Number: No. 47749,47749
• Parties: Peggy J. KEIM, Appellant, v. Keith C. KEIM, Respondent, and Carlos K. Schwarz, Third Party Defendant.

Page 72

676 S.W.2d 72

Peggy J. KEIM, Appellant, v. Keith C. KEIM, Respondent and Carlos K. Schwarz, Third Party Defendant.

No. 47749.

Missouri Court of Appeals Eastern District.

Aug. 21, 1984.

Charles P. Todt, St. Louis, for appellant.

Reginald P. Bodeux, St. Charles, for respondent.

Before CRANDALL, P.J., PUDLOWSKI, J., and KENNEDY, Sp. J.

DON W. KENNEDY, Special Judge.

This is a dissolution case in which the wife, Peggy, also filed a third-party petition against third-party defendant, husband's (Keith's) stepfather, Mr. Schwarz, to set aside a quitclaim deed to third-party defendant, by which she and Keith had conveyed their residence to him.

The court declined to set aside the deed, granted the dissolution and awarded Peggy $20 per week child support for the couple's seven-year-old child, Jennifer, whose custody was given to her.

The wife appeals with three points of alleged error. We affirm the judgment for the reasons hereinafter explained.

I

Peggy's first point is that the evidence is not sufficient to support the court's refusal to set aside the deed.

The deed sought to be set aside was to the Picardy residence, so named for its location at 904 Picardy Street in St. Charles, Missouri. It was the residence occupied by the parties at the time of their separation on or about December 10, 1981, or perhaps as early as November 27. The deed was dated December 1, 1981, although Peggy insists she signed it on December 30. Peggy continued to occupy the house along with the couple's child, and apparently was still occupying it at trial time in May, 1983. Both Keith and Peggy joined in the quitclaim deed to Mr. Schwarz after their separation and the commencement of divorce proceedings. Peggy seeks to set the deed aside on grounds of Mr. Schwarz's fraud and undue influence practiced upon her.

The trial court declined to set the deed aside. We find that his decision was well supported by the evidence in the record, and we affirm the same. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The history of the Picardy house and the events leading up to the quitclaim deed are as follows. This is largely Mr. Schwarz's version, as amplified at some points by the testimony of Keith and Peggy. Of course, we take the evidence which is most favorable to the trial court's decree. Askins v. James, 642 S.W.2d 383, 386 (Mo.App.1982); In the Interest of J.J.M., 592 S.W.2d 862, 863 (Mo.App.1979).

The house had been purchased by Mr. Schwarz on November 26, 1980, for a cash price of $72,000, as a residence for Keith and Peggy. According to Mr. Schwarz's testimony, he was motivated by a desire to keep their marriage together, which was on rather a precarious footing. The couple had agreed that the residence would be helpful. Mr. Schwarz directed that the deed to the property be placed in Keith's and Peggy's names, although no one has claimed in these proceedings that it was a gift. They were to pay him $500 per month. The figure was set on the basis of the couple's ability to pay, according to Mr. Schwarz's testimony.

On March 27, 1981, Keith and Peggy executed to Mr. Schwarz a promissory note for $65,000 and a deed of trust on the house securing the payment of the note. The note bore no interest and it was payable at the rate of $500 per month. Mr. Schwarz did not record the note and deed of trust at that time but kept it in his safe deposit box.

The couple continued to occupy the house until their separation in December of 1981. The $500 monthly payments stopped after November. There were the taxes soon to be paid, and an outstanding tax bill. The total of the taxes was $1200 or $1300, or that may have been the amount of the tax bill by itself; the record is not entirely clear. The couple was financially unable to pay the taxes, and Mr. Schwarz volunteered to pay the taxes for them.

On or about December 1, Mr. Schwarz had prepared a quitclaim deed by which Keith and Peggy reconveyed the property to him. Keith signed it at Mr. Schwarz's home, or at Keith's place of employment. Mr. Schwarz took it to Peggy at her home for her signature. She signed it on her kitchen table. According to Mr. Schwarz's testimony, he explained to her what it was and she understood what its legal effect was.

The subject of the $500 monthly payments came up on Christmas Day, when Mr. Schwarz and his wife went to the Picardy house to exchange gifts with Peggy and the couple's small daughter Jennifer. Keith was not there; he and Peggy were now separated. At that time Peggy gave Mr. Schwarz a check for $250, half the $500 payment for December, and Mr. Schwarz told her he would try to get the other $250 from Keith. According to Peggy's testimony, Mr. Schwarz at this time declared a "moratorium" on future payments.

Peggy never made any more payments on the house. She continued to live in the house, as earlier stated, at least until the divorce trial in May, 1983.

The quitclaim deed and the deed of trust were recorded in the recorder's office on December 30, 1981.

Prior to their moving into the Picardy house in November, 1980, Keith and Peggy had lived in a house on Campus Street. This house had been owned by Mr. Schwarz and his wife. Keith and Peggy paid to Mr Schwarz "whatever my interest and principal payments and taxes, whatever the escrow figure was from General Mortgage Company, that would be their figure." This amount according to Peggy's testimony was $150 per month. After Keith and Peggy moved out and moved into the Picardy house, Mr. Schwarz sold the Campus property.

Keith's testimony indicated that when the Picardy house was purchased by Mr. Schwarz, the understanding was that Mr. Schwarz was carrying the financing on an informal basis until Keith and Peggy could finance it through a regular banking institution, and they would pay Mr. Schwarz $500 a month in the interim. The going interest rate at that time was almost 19% per annum and the monthly payments would have been about $800 per month, which, according to all the testimony, the couple could not manage.

Peggy's version varied somewhat from that just recounted, which, as earlier stated, is drawn largely from Mr. Schwarz's testimony. She said that when she signed the note and deed of trust she did not know what it was; did not know until after she had signed the quitclaim deed and had begun to investigate that her name had been on the title; did not know or understand what the quitclaim deed was or what its legal effect was; and that when it was presented to her to sign it was concealed by some other papers. Allowing, for argument's sake only, that her testimony if believed would have made a case for setting aside the quitclaim deed, it was...