Marriage of Harrison, In re, 14873

• Decision Date: 30 July 1987
• Docket Number: No. 14873,14873
• Citation: 734 S.W.2d 934
• Parties: In re the MARRIAGE OF Jeffrey Huff HARRISON and Sally Ann Harrison. Jeffrey Huff HARRISON, Respondent, v. Sally Ann HARRISON, Appellant.
• Court: Missouri Court of Appeals

Page 934

734 S.W.2d 934

In re the MARRIAGE OF Jeffrey Huff HARRISON and Sally Ann Harrison.

Jeffrey Huff HARRISON, Respondent, v. Sally Ann HARRISON, Appellant.

No. 14873.

Missouri Court of Appeals,

Southern District,

Division One.

July 30, 1987.

Robert C. Fields, Lois M. Zerrer, Springfield, for appellant.

James D. Tucker, William C. Love, Harrison, Tucker & Geisler, Springfield, for respondent.

PER CURIAM.

Sally Ann Harrison ("Sally") appeals from an order dismissing with prejudice her amended counterclaim wherein she prayed the trial court to vacate and set aside certain provisions of a decree dissolving her marriage to Jeffrey Huff Harrison ("Jeff"). The issues submitted for our determination require a recapitulation of the litigation between the parties.

On July 8, 1982, Sally and Jeff, accompanied by their respective attorneys, appeared in the trial court for a hearing on Jeff's petition to dissolve their marriage of almost 17 years. A 19-page document captioned "Separation and Marital Settlement Agreement," bearing the signatures of both parties, was offered in evidence by Jeff, and received by the trial court without objection by Sally.

Jeff's testimony showed, among other things, that he is a practicing attorney.

The agreement, henceforth referred to as "the separation agreement," provided for division of the marital property by listing, in separate schedules, the items thereof to be awarded to each party. Jeff's schedule included:

"All rights, title and interest in the law firm of Harrison, Tucker & Dorr."

No value was assigned to that item.

The separation agreement also contained, among other things, provisions for maintenance for Sally, and for custody, visitation and support of the parties' two unemancipated children.

Sally's testimony at the hearing included this:

"Q Is it also correct, as your husband has testified, that both you and he have negotiated a separation and property settlement agreement between your lawyers?

A Yes.

Q And, do you understand this separation agreement and property settlement contract to cover all marital and non-marital property owned by the two of you?

A I do. (Nods head.)

Q Do you believe that it is a fair division and distribution of this property?

A Yes.

Q And, do you also feel it's fair with respect to maintenance and child support?

A Yes.

Q Do you want the Court to approve this agreement?

A Yes.

....

Q ... Mrs. Harrison, with regard to this separation and marital settlement agreement, on page three of Schedule B the interest, title, and rights of the law firm of Harrison, Tucker, & Dorr are awarded to your husband. Do you understand that?

A I do.

Q And, you understand that whatever interests he's accumulated in that is marital property?

A Yes.

Q And, you know that the value of that is somewhat difficult, if not impossible, to determine?

A I understand.

Q And, you have, I believe, examined the most recent records on the law firm prepared by Mr. Samek, with your husband? Did you review a balance sheet?

A Yes.

Q And, it's with that information that you're freely deciding to let him have his interest in the law firm, without any claim to that in the future. Is that correct?

A Yes."

At the conclusion of the hearing, the trial court made findings including the following: "Separation agreement filed, and the Court, finding it to be fair, reasonable, and not unconscionable, approves same, and it is hereby incorporated into and made a part of the decree." The trial court thereupon entered a decree of dissolution of marriage containing this provision: "Separation Agreement to be incorporated in and made part of decree."

On April 4, 1983, fewer than 9 months after entry of the decree, Jeff filed a motion to modify the provisions thereof pertaining to child custody and support.

Sally responded with a four-count "counterclaim." Count I thereof prayed the court "to determine that the [separation] agreement ... is not a valid agreement and the decree ... is not a final decree, and to set aside said decree and divide the property of the parties as the Court deems fair and just and to award [Sally] such maintenance and attorney fees as the Court deems proper." Count II prayed for essentially the same relief. Count III pertained to child support; Count IV pertained to the children's medical expenses. We are not, on this appeal, concerned with Counts III and IV, as they, along with Jeff's motion to modify, were resolved by stipulation of the parties.

On July 18, 1984, the trial court, pursuant to the stipulation mentioned in the preceding paragraph, entered an order modifying the child support, custody and visitation provisions of the dissolution decree. Pertinent to the instant dispute, the order provided: "This Order has no effect upon Counts I and II of [Sally's] ... Counterclaim...."

The next relevant activity occurred more than 19 months later, when Sally, on March 3, 1986, filed an "Amended Counterclaim." The copy thereof furnished us in the legal file, Rule 81.12(a), ¹ contains two counts designated, respectively, Count I and Count II.

Jeff responded to Sally's amended counterclaim by filing a motion praying the trial court to dismiss both counts with prejudice "for failure to state a claim upon which relief can be granted."

In an "Order of Dismissal," filed July 11, 1986, the trial court ruled:

"[A]fter considering all of the pleadings, Amendments, Suggestions, prior argument, transcripts and the Court record, this Court finds that [Sally's] Amended Counterclaim, based upon existing Missouri law, fails to state a cause of action cognizable at law or equity to set aside the Settlement Agreement or modify the Dissolution Decree and fails to plead the elements necessary for any other legal or equitable relief.

WHEREFORE, IT IS ORDERED that [Sally's] Amended Counterclaim should be and is hereby dismissed with prejudice, and the costs to be taxed equally against [Jeff] and [Sally]."

This appeal followed.

Sally's brief reads as if her amended counterclaim contained only one count. The allegations referred to in her brief are exclusively those of Count I, and the relief she seeks from us is a mandate remanding the cause for trial on the issues raised by Count I. Nowhere in Sally's brief does she mention the allegations of, or the relief sought in, Count II, nor does she charge the trial court with error in dismissing that count. We therefore hold that Sally has abandoned any issue she might have raised as to the dismissal of Count II. Ramacciotti v. Joe Simpkins, Inc., 427 S.W.2d 425, 426 (Mo.1968); Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405 (Mo.1964). Accordingly, we henceforth confine our attention to Count I.

Summarizing the discursive averments of Count I is a vexing task; nonetheless, we have undertaken it in an effort to hold this opinion to conscionable length.

Capsulized, Count I alleges that Sally was not "apprised" of the value of Jeff's law firm before signing the separation agreement; no discovery as to value was done on her behalf; prior to entry of the dissolution decree, Jeff told Sally she was entitled to no portion of the law firm, and if she "____ed" with it, he would "drag the divorce out forever and it would cost every last penny she had"; within a week prior to entry of the dissolution decree, Jeff threatened Sally that if she hired certain attorneys of which he did not approve, or if she failed to go through with the dissolution according to the separation agreement, he would drag the dissolution out as averred in the preceding clause; while the dissolution proceeding was pending, Jeff refused to move from the marital home, telling Sally no court would order a man out of his house; during the same interval Jeff took from Sally all credit cards and checks, leaving her no funds to move from the marital home with the parties' children; prior to entry of the dissolution decree, Jeff "brutally hounded" Sally for hours at a time, sometimes not allowing her to sleep at night and telling her what she must agree to regarding the dissolution; Jeff told Sally prior to entry of the dissolution decree that unless she transferred title to certain apartments referred to in the decree, he would make her pay half the mortgage each time it was due, together with other expenses; Jeff told Sally that as an attorney, he knew how judges react and what courts would allow in dissolutions, thus she had no other choice than to sign the separation agreement; prior to entry of the dissolution decree, Jeff "physically abused" Sally, causing her to be "cut and bruised," necessitating treatment by dentists and doctors; Jeff informed Sally that one of Jeff's partners would be in a position to draft all papers and handle all legal work on behalf of Jeff and Sally, and it was unnecessary for Sally to confer with another attorney; when Sally told Jeff she wished to have her own attorney, Jeff threatened Sally as heretofore alleged; no negotiations occurred between Jeff's attorney and the attorney ultimately hired by Sally; the separation agreement was the same as prepared by Jeff's attorney; no appraisals of any property were done prior to entry of the dissolution decree or, if appraisals were done, they were not made available to Sally; the values stated in the dissolution decree were incorrect, and known to be so by Jeff; Sally did not understand which assets should be considered by the court in dividing the marital property, and was unaware of their value due to misrepresentations, fraud, duress and coercion by Jeff; Sally did not understand she was entitled to temporary support and maintenance; Sally did not believe her retained attorney could or would advise or represent her because he was approved by Jeff; Jeff concealed certificates of deposit from Sally; Jeff's attorney misled the trial court and Sally by stating the value of Jeff's law firm is difficult, if not impossible, to determine; Sally did not challenge that...