Ludwig v. Ludwig, WD
| Decision Date | 14 May 1985 |
| Docket Number | No. WD,WD |
| Citation | 693 S.W.2d 816 |
| Parties | Ronald L. LUDWIG, Petitioner-Respondent, v. Vivian Irene LUDWIG, Respondent-Appellant. 35717. |
| Court | Missouri Court of Appeals |
Richard N. Brown, Brown & Casey, Brookfield, for respondent-appellant.
Robert G. Smith, Brookfield, for petitioner-respondent.
Before TURNAGE, C.J., MANFORD, J., and EDITH L. MESSINA, Special Judge.
Appellant, Vivian Irene Ludwig, appeals from a judgment rendered in the Circuit Court of Linn County in favor of respondent Ronald L. Ludwig. Appellant claims the trial court erred in failing to set aside to her certain interests in real and personal property which were subjects of a writing drafted by respondent and delivered to appellant, prior to their marriage. In addition, appellant claims that the trial court erred in "taking judicial notice" of a decree of dissolution entered in the Circuit Court of Sullivan County, which decree dissolved the marriage of appellant and her first husband. Affirmed.
The parties, Ronald and Irene Ludwig, were married March 11, 1982. Prior to their marriage, the parties had engaged in a meretricious relationship dating from 1975, during which period appellant was married to Ellis Carroll Smith. On March 18, 1977, Ronald executed a handwritten instrument which reads as follows:
Irene Smith who now lives at 620 Main Milan Mo. also owns the house and all the contents in the house on this 140 acres that we jointly own together.
Dated March 18, 1977
/s/Ronald Ludwig
Browning Mo
There is no testimony that the instrument was ever recorded. The Court admitted this document into evidence over objection of counsel for Ronald. As an explanation of this document, Irene testified as follows:
Ronald wanted me to get a divorce from my husband. And he offered this as security if I would get a divorce and see that his name wasn't brought into it. For me to give up my home, my family life and my security, he gave me this to prove to me that I would have a home and an income for the rest of my life, if I divorced my husband.
Ronald characterized the instrument somewhat differently: Based upon Irene's testimony, the trial court ruled that the instrument was an agreement which could not be enforced since the consideration (in the form of Irene's insecurity) had failed when she received a substantial property settlement in her 1979 dissolution of marriage. The Court set aside the entire 140 acre parcel as Ronald's separate property.
Under § 452.330(1), RSMo Supp. 1984, the trial court must "set apart to each spouse his property" prior to dividing the marital property of the parties. Weast v. Weast, 655 S.W.2d 752, 755 (Mo.App.1983). All non-marital property is "separate" property under this statute. Busby v. Busby, 669 S.W.2d 597, 599 (Mo.App.1984). Normally the proponent of a declaration of separate property bears the burden of proving premarriage ownership, gift or inheritance. Weast v. Weast, 655 S.W.2d at 755. Here neither party alleges that the subject matter is marital property. Rather the question is to whom it belongs. The trial court's decree is final; failure to set aside separate property to its owner does not prevent an appeal from the decree. In re Marriage of Dusing, 654 S.W.2d 938, 944 (Mo.App.1983).
We agree with the trial court that the instrument cannot be an enforceable agreement, but for a different reason. Interpreted as an agreement, Ronald's purpose in executing the instrument must at least in part have been to facilitate Irene's dissolution of marriage. Any agreements with a stanger to the marriage relationship which are "conditioned upon, intended or calculated to facilitate the dissolution of such marriage status, are held void as contrary to sound public policy." Wagner v. Shelly, 241 Mo.App. 259, 235 S.W.2d 414, 417 (1950). See also Bloss v. Bloss, ...
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