LaBarge v. LaBarge, 42174
| Decision Date | 17 November 1981 |
| Docket Number | No. 42174,42174 |
| Citation | 627 S.W.2d 647 |
| Parties | Pierre L. LaBARGE, Jr., Petitioner-Respondent, v. Mary Ann LaBARGE, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Baine, Edward & Wideman, Robert P. Baine, Jr., Clayton, John A. Walsh, Jr., St. Louis, for respondent-appellant.
Donald H. Clooney, St. Louis, for petitioner-respondent.
Wife attempts to appeal from the order denying her motion for a new trial in a proceeding to set aside a decree of dissolution. We dismiss by reason of a defective notice of appeal.
The denial of a motion for a new trial is not an appealable order. Cady v. Kansas City Southern Railway Co., 512 S.W.2d 882, 885 (Mo.App.1974); Haywood v. Haywood, 527 S.W.2d 36, 37 (Mo.App.1975).
We are aware that inadequacy of a notice of appeal is often waived by appellate courts in the interest of justice. See, Bildner v. Giacoma, 522 S.W.2d 83, 87 (Mo.App.1975). Accordingly, we believe an explanation for this dismissal is indicated. United Tel. Co. of Missouri v. Horn, 610 S.W.2d 701 (Mo.App.1980).
The marriage of the parties was dissolved on July 21, 1978. Each was represented by lawyer. The trial court based its order dividing their property upon their signed stipulation. There was no appeal from this order. See, State ex rel. McClintock v. Black, 608 S.W.2d 405 (Mo.banc 1980). On December 7, 1978, husband filed his motion to transfer principal custody of their daughter, age 16, to husband. Wife responded on March 8, 1979, by filing her motion to set aside the court's order relating to division of property. In wife's second amended motion of June 6, she alleged fraud in that:
(1) Husband made a gift, some 80 days before the dissolution, in an amount of $415,000.00 to a charitable donee of stock set off to husband by the decree at value of $2,905.00. Husband's tax advance was a marital asset; and
(2) Husband received by the decree real estate in Louisiana which was under valued by reason of husband's failure to tell her of the value of the mineral rights in and to said real estate; and
(3) Husband concealed the fact that he was the beneficiary of a profit sharing plan and of a pension plan. These assets were omitted from the stipulation and were not included in the dissolution decree.
The trial court ruled that the stock and real estate had been disposed of in the original dissolution. We agree with the court below that as to the property allocated by the original decree, the decree is conclusive and not open to modification. Schulz v. Schulz, 612 S.W.2d 380, 382 (Mo.App.1980). The allegations of fraud as to the stock and real estate could not stand...
To continue reading
Request your trial
-
Pittman v. Reynolds
...The doctrine of leniency, however has apparently been extended ex gratia and without discernable uniformity. LaBarge v. LaBarge, 627 S.W.2d 647 (Mo.App.1981); Lucky v. Avon Products, Inc., 589 S.W.2d 364 (Mo.App.1979). Where violation of the appeal requirements of Rule 81.08(a) has not resu......
-
Portell v. Portell, 44822
...relate to intrinsic fraud and do not form a proper basis for setting aside the judgment obtained in this case. See, LaBarge v. LaBarge, 627 S.W.2d 647, 648 (Mo.App.1981); Koeller v. Koeller, 589 S.W.2d 620, 623 (Mo.App.1979); Human Development Corporation of Metropolitan St. Louis v. Wefel,......
-
Ensco Distributing Corp. v. Oppenheimer Precision Products, Inc., 51203
...to set aside or amend a judgment under Rule 75.01. See Pittman v. Reynolds, 679 S.W.2d 892, 893 (Mo.App.1984); and LaBarge v. LaBarge, 627 S.W.2d 647 (Mo.App.1981). Defendant cannot appeal the trial court's refusal to set aside the judgment, and a liberal construction of its notice of appea......