Marriage of DuBois, In re

• Decision Date: 26 April 1994
• Docket Number: No. 18768,18768
• Citation: 875 S.W.2d 223
• Parties: In re the MARRIAGE OF DUBOIS. Pamela K. DUBOIS, Petitioner-Respondent, v. Richard M. DUBOIS, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 223

875 S.W.2d 223

In re the MARRIAGE OF DUBOIS.

Pamela K. DUBOIS, Petitioner-Respondent, v. Richard M. DUBOIS, Respondent-Appellant.

No. 18768.

Missouri Court of Appeals,

Southern District,

Division One.

April 26, 1994.

Roger L. Ponder, House Springs, for respondent-appellant.

H. Lynn Henry, Henry, Henry & Engelbrecht, West Plains, for petitioner-respondent.

SHRUM, Judge.

In this domestic relations case Richard M. DuBois (husband) appeals from an order of the trial court setting aside a dissolution decree entered on October 26, 1992. The respondent on appeal is Pamela K. DuBois (wife). The dispositive issue, as framed by the husband's Point III, is whether the wife suffered prejudice from the order, thereby permitting the trial court to set aside the order pursuant to Rule 74.03.

We affirm.

FACTS

The parties were married to each other once before. Their first marriage ended via a dissolution decree entered February 29, 1984, under which the husband was to pay the wife $16,500 in property settlement; however, that was never paid. Consequently, payment of that sum was an issue in their second dissolution case.

An oral settlement agreement was reached by the parties on May 21, 1992. At a hearing on the dissolution petition held on that date the wife testified to the terms of the agreement as follows. The husband was to pay the wife the $16,500 due under the first dissolution decree "as soon as possible" but in no event "more than 30 days." The wife was to convey two parcels of real estate to the husband. One parcel, 119 acres in Oregon County, the wife valued at $18,000. The other tract, a home in Hillsboro, Missouri, she valued at $60,000. The wife was to convey the real estate when she received the $16,500.

In her testimony the wife described IRS liens against the real estate and the equity in the properties thusly:

Q. (to the wife) Now, there are substantial federal tax liens outstanding that are encumbrances against the real estate; is that correct?

A. Yes

Q. Do you know the approximate balance of all those tax liens?

A. Between $80,000 and $100,000, I believe.

Q. Such that ... if there is equity ... in the property ... it would be slight or minimum?

A. Right....

Q. And it's for that reason that you are willing to enter into the settlement that you are?

A. Yes.

On May 21, 1992, the trial court ordered the marriage dissolved. It took the property settlement and the child support question under advisement until the parties filed a formal property settlement agreement and a Form 14 child support schedule. However, a written settlement containing the provisions outlined by the wife's testimony on May 21, 1992, was never provided.

In a verified motion filed on November 3, 1992, the husband said that because of the federal tax liens he was unable to get the $16,500 for the wife as agreed. Through their respective lawyers, the parties then negotiated a different property settlement.

The new agreement was reduced to writing and signed by both parties. The husband's lawyer filed the revised agreement with the court on October 14, 1992. It provided that the husband was to pay respondent $5,500 by depositing it with the registry of the Oregon County Circuit Court. The $5,500 was to be delivered to the wife within seventy-two hours after the husband received quit claim deeds for the real estate. The remainder of the $16,500 sum was to be paid by the husband in twenty-two monthly installments of $500 per month. It also recited that when signed by the wife, the agreement was to serve as a complete satisfaction and release of the $16,500 portion of the judgment in favor of the wife in the first dissolution case. The written marital settlement agreement did not mention the IRS debt thus leaving it as an unaddressed obligation of both parties.

At an evidentiary hearing in February 1993, the husband admitted that in October 1992 he informed an IRS employee that he was sending a $5,500 payment due the Wife to the Oregon County Circuit Clerk's Office. He gave the IRS that information so that "they could get out a notice of tax lien."

On October 29, 1992, 15 days after the marital settlement agreement was filed with the circuit clerk's office, the wife filed a verified motion entitled "Motion To Rescind Marital Settlement." In it she alleged that the husband negotiated and signed the separation agreement without intending that she get the $5,500 but, rather, arranged with the IRS to seize the payment once he deposited it with the circuit clerk.

Asserting that she was rescinding the agreement, the wife requested that the trial court not enter a decree based on the agreement or, if a decree had been entered, that it be set aside and that the court set the case for trial.

On November 2, 1992, the trial court wrote to the respective lawyers about the case, saying in part:

"I notice that on the 29th of September, 1992, a marital settlement and stipulation agreement was filed but no request was made by anybody to have the court approve this document nor has any formal decree of divorce ever been submitted to the court for consideration." ¹

Inexplicably the information in the letter about the absence of a decree was incorrect. In fact a decree incorporating the written separation agreement was filed on October 26, 1992. Nothing in the record shows that the circuit clerk ever sent the decree to the On February 18, 1993, the trial court conducted an evidentiary hearing on the wife's motion to rescind the marital settlement agreement. During that hearing the wife's lawyer first learned of the October 1992 dissolution decree. At the conclusion of the February 1993 hearing, the trial court took the wife's motion to rescind under advisement.

respective parties or their lawyers or that they were otherwise notified of the decree before February 1993.

On March 17, 1993, the Wife filed a verified motion to set aside the judgment. She alleged that until the "Motion To Rescind Marital Settlement" hearing on February 18, 1993, neither she nor her lawyer knew of the October 1992 dissolution decree. Citing Rule 74.03 and Rule 74.06 as authority for her request, the wife moved the court to set aside the decree.

On March 23, 1993, the trial court entered an order setting aside the October 26, 1992, judgment. In part the order reads:

"[T]he Court having considered petitioner's Motion to Set Aside Judgment ... finds that there is good cause to set aside such judgment and to allow further proceedings thereon; the Court finds that there is evidence that petitioner nor her attorney were ever made aware of the entry of said judgment prepared by respondent as required by Civil Rule 74.03....

SO ORDERED."

This appeal followed.

DISCUSSION AND DECISION

Under Rule 84.04(d) one necessary component of a point relied on is a concise statement of the challenged ruling of the trial court. In re Marriage of McCoy, 818 S.W.2d 322, 325 (Mo.App.1991). In his first point, the husband describes the ruling of the trial court that he challenges thusly:

"The Circuit Court erroneously declared and applied the law in determining that it still had jurisdiction to hear wife's motion to rescind the marital settlement ... 113 days from the date she filed her motion and in ordering the setting aside of said ... decree 146 days after her motion was filed in that wife's motion was filed on October 28, 1992 and it was overruled as a matter of law ninety ... days after the date she filed her motion." (Emphasis ours.)

The husband's point and his argument in support mischaracterize what the record shows. Because an evidentiary hearing on the wife's "Motion To Rescind Marital Settlement" was held on February 18, 1993, following which the trial court took that motion under advisement, the husband may have anticipated that the trial court was going to rule that motion. That, however, did not occur. Rather, the trial court set aside the decree based upon Rules 74.03 and 74.06, grounds first raised in the wife's motion of March 17, 1993, and not upon the wife's "Motion To Rescind Marital Settlement."

The husband's Point I argument--that the trial court ruled the "Motion To Rescind Marital Settlement" when it was without jurisdiction to do so--misstates the facts. In effect, the husband asks that we decide an abstract question that did not arise upon existing facts. See State ex rel. Brokaw v. Board of Education, 171 S.W.2d 75, 85 (Mo.App.1943). This we will not do.

Appellate courts do not render advisory opinions or decide nonexistent issues. Warren v. Warren, 601 S.W.2d 683, 687 (Mo.App.1980). Given the state of this record, any opinion voiced by us on the question of whether the trial court had jurisdiction to rule on the wife's October 29, 1992, motion would be merely advisory. For that reason we refrain from doing so. Point I is rejected.

In Point III the husband claims that the trial court erred in using Rule 74.03 to set aside the October 26, 1992, judgment. He acknowledges that the circuit clerk failed to notify the parties of the entry of the judgment as required by Rule 74.03. The thrust of his point on appeal and argument, however, is that the wife has not shown she was prejudiced by the lack of notice.

Rule 74.03 provides:

"Immediately upon the entry of an order or judgment, the clerk shall serve a notice of the entry by mail in the manner provided for in Rule 43.01 upon each party who is not in default for failure to appear and who was not present in court in person or by attorney at the time of the entry of such order or judgment. If such notice is not given, the order or judgment shall be set aside for good cause shown upon written motion filed within six months from the entry of the order or judgment."

Because the wife was not in default for failure to appear and was not present in court when the judgment was entered, she was entitled to notice under this rule. Krueger v. Perez, 764 S.W.2d 173, 174 (Mo.App.1989). However,...