Lekander v. In the EState Robert Lekander
| Decision Date | 13 May 2011 |
| Docket Number | No. SD 30702.,SD 30702. |
| Citation | 345 S.W.3d 282 |
| Parties | Norma Lee LEKANDER, Petitioner–Appellant,v.In The ESTATE OF William Robert LEKANDER, Sr., Deceased, Jason Werner Lekander, as Personal Representative of The Estate of William Robert Lekander, Sr., Deceased, Respondent–Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
James F. McLeod, Springfield, MO, for Appellant.Leland L. Gannaway, Springfield, MO, for Respondent.DON E. BURRELL, Judge.
Norma Lee LeKander (“Ms. LeKander”) appeals the “judgment” 1 denying her $57,700 claim against the estate of her deceased, ex-husband, William Robert LeKander, Sr. (“Mr. LeKander”). Ms. LeKander's claim sought payment of the outstanding balance of a mortgage against a house in Springfield that she and Mr. LeKander had purchased during the course of their marriage (“the home”). Mr. and Ms. LeKander divorced in April 2009.
The parties' divorce decree incorporated a “Marital Settlement and Separation Agreement” (“the settlement agreement”). The settlement agreement provided that the home would be sold and the parties would split the “proceeds.” The home remained unsold at the time of Mr. LeKander's death in August 2009.
The trial court found that the settlement agreement was ambiguous as to whether Mr. LeKander was to pay (1) the entire mortgage debt or (2) the monthly mortgage payments until the home was sold, then one-half of the mortgage balance at the time of the sale. Based on this ambiguity, the trial court ultimately construed the settlement agreement against Ms. LeKander, whose attorney had drafted it.2 The trial court denied Ms. LeKander's claim for the full mortgage balance but awarded her an amount equal to the interest she had paid on the mortgage after Mr. LeKander's death.
Ms. LeKander first asserts the trial court erred in finding the settlement agreement ambiguous because its terms were not susceptible to more than one meaning. Second, she asserts that if the settlement agreement is ambiguous, the trial court erred in construing its terms against Ms. LeKander instead of considering extrinsic evidence “to infer the parties' intent.” Finding no merit in either contention, we affirm.
Facts and Procedural Background
Ms. LeKander was the only witness at the hearing on her claim. She testified that approximately 19 years before the hearing, she and Mr. LeKander purchased the home as husband and wife. The settlement agreement called for Ms. LeKander to vacate the home after the dissolution. Mr. LeKander remained in the home.
After Mr. LeKander's death, Ms. LeKander entered into an arrangement with the bank that allowed her to make interest-only payments on the mortgage. Ms. LeKander made three such payments from a joint account in the name of Mr. and Ms. LeKander. Thereafter, Ms. LeKander deposited additional money into this account on five occasions for the purpose of making these payments. Ms. LeKander paid a total of $1,297.42 from her own funds to make the interest-only payments on the mortgage. Ms. LeKander testified that the mortgage balance on the home at the time of the hearing was $57,700; the original purchase price had been approximately $115,000.
Although exhibits numbered 1–7, consisting of the settlement agreement, a bank statement, and bank deposit receipts were admitted into evidence, they were not deposited with this court by Ms. LeKander.3 “When exhibits are omitted from the transcript and are not filed with the appellate court, the intendment and content of the exhibits will be taken as favorable to the trial court's ruling and as unfavorable to the appellant.” Shadow Lake of Noel, Inc. v. Supervisor of Liquor Control, 893 S.W.2d 835, 839 (Mo.App. S.D.1995).
The settlement agreement stated that the home had been owned by the couple as “tenants by the entirety.” Paragraph A.2. of the settlement agreement (entitled “DIVISION OF MARITAL PROPERTY”) provided that the home would be sold and “[t]he parties will divide the proceeds from the sale of the home equally with one-half going to [Ms. LeKander] and one-half going to [Mr. LeKander].” As to personal property, Ms. LeKander received the parties' 2007 Impala. Mr. LeKander was awarded two other (apparently unencumbered) vehicles, each over twenty years old. It also divided their household goods.
Paragraph C.2. of the settlement agreement (entitled “ASSUMPTION OF DEBTS AND LIABILITIES”) was a table that allocated the parties' marital debts as follows:
+-----------------------------------------------------------------------------+
¦Creditor ¦Amount ¦Party Responsible ¦
+------------------------+----------------------------+-----------------------¦
¦ ¦$60,000.00 (Approximately ¦ ¦
¦[Named Bank # 1] ¦$675.00 monthly until home ¦Husband ¦
¦ ¦is sold) ¦ ¦
+------------------------+----------------------------+-----------------------¦
¦[Named Store] ¦$750.00 ¦Wife ¦
+------------------------+----------------------------+-----------------------¦
¦[Named Bank # 2] ¦$611.12 ¦Wife ¦
+------------------------+----------------------------+-----------------------¦
¦[Named Credit Union # 1]¦$800.00 ¦Wife ¦
+------------------------+----------------------------+-----------------------¦
¦[Named Bank # 3] ¦$876.69 ¦Wife ¦
+------------------------+----------------------------+-----------------------¦
¦[Named Credit Union # 1]¦$14,000.00 ¦Wife ¦
+-----------------------------------------------------------------------------+
The $14,000 credit union loan assigned to Ms. LeKander represented the balance owed on the 2007 Impala she was receiving.
The trial court found that The trial court went on to find that the parenthetical language was ambiguous
as to whether Mr. LeKander was to be responsible for the entire debt or whether he was to be responsible for paying the mortgage until [the home] sold. Because [Ms.] LeKander's attorney drafted the agreement, it will be construed against the drafter. The [trial] court finds that it was the intent of the parties to 1) sell the home; 2) pay off the loan; and then 3) split the proceeds.
The trial court therefore denied Ms. LeKander's claim for the full balance of the mortgage and awarded her $1,297.42, representing a reimbursement for the interest-only payments she had made on the mortgage after Mr. LeKander's death.
Analysis
Point I: the Settlement Agreement was Ambiguous
Ms. LeKander's first point contends the trial court “erroneously found that the [settlement agreement] was ambiguous, in that the terms are not susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of its terms.” As correctly noted by Ms. LeKander, marital settlement agreements are construed using ordinary contract principles. Wood v. Wood, 2 S.W.3d 134, 138 (Mo.App. S.D.1999). Whether a settlement agreement is ambiguous is a question of law. Royalty v. Royalty, 264 S.W.3d 679, 684 (Mo.App. W.D.2008). On such legal questions, we owe the trial court no deference and review the matter de novo. Id. at 683–84.
A contract is not ambiguous simply because the parties later disagree on its meaning. Wood, 2 S.W.3d at 138. Rather, “[a]n ambiguity arises when it appears from the four corners of the contract that ‘the terms are susceptible of more than one meaning so that reasonable persons may fairly and honestly differ in their construction of the terms.’ ”' Royalty, 264 S.W.3d at 684 (quoting Eveland v. Eveland, 156 S.W.3d 366, 369 (Mo.App. E.D.2004)). “In determining whether or not there is such an ambiguity as calls for construction, the whole instrument must be considered.” J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo. banc 1973). Here, the parties' dispute hinges on two provisions: (1) the use of the word “proceeds” in paragraph A.2. and (2) the parenthetical phrase “[a]pproximately $675.00 monthly until home is sold” in paragraph C.2.
Ms. LeKander suggests that “proceeds” has a plain and ordinary meaning, quoting Webster's Ninth New Collegiate Dictio nary, 937 (9th ed.1987) (principal copyright 1983), which she says defines “proceeds” as “the total amount brought in
Ms. LeKander's argument is in the form of a triple-negative—that the settlement agreement is not ambiguous because it does not expressly state that the mortgage would not be assumed by Mr. LeKander. Additionally, she contends the agreement
does not state “net” proceeds, nor does it state that the mortgage is to be deducted from the sale proceeds once sold. Had this been the case, the agreement would have specified, for example, as it did regarding equal division of listing expenses, that the mortgage was to be divided equally.
The estate argues that the settlement agreement contains “ambiguous and conflicting writings[.]” According to the estate, the drafter of the settlement agreement
tentatively leads the reader to think that Mr. LeKander is assuming the entire indebtedness of $60,000 on [the home]....
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