Marriage of Jamison, In re, KCD

• Decision Date: 29 October 1979
• Docket Number: No. KCD,KCD
• Citation: 592 S.W.2d 181
• Parties: In re the MARRIAGE OF Willa Lea JAMISON, and Stanley Eugene Jamison. Willa Lea JAMISON, Petitioner, v. Stanley Eugene JAMISON, Respondent. 30514.
• Court: Missouri Court of Appeals

Page 181

592 S.W.2d 181

In re the MARRIAGE OF Willa Lea JAMISON, and Stanley Eugene Jamison.

Willa Lea JAMISON, Petitioner, v. Stanley Eugene JAMISON, Respondent.

No. KCD 30514.

Missouri Court of Appeals, Western District.

Oct. 29, 1979.

Motion for Rehearing and/or Transfer Denied Dec. 31, 1979.

Application to Transfer Denied Feb. 11, 1980.

P. Terence Crebs, Michael J. McKitrick, St. Louis (Gallop, Johnson, Godiner, Morganstern & Crebs, St. Louis, of counsel), for petitioner.

Robert F. Pyatt, Chillicothe, for respondent.

Before WASSERSTROM, C. J., and WELBORN and MASON, Special Judges.

WASSERSTROM, Chief Judge.

The marriage of Willa and Stanley Jamison was dissolved by decree of the circuit court dated September 23, 1976, under which the court also awarded maintenance to Willa and approved an oral division of marital property. On November 1, 1976, Stanley died in a highway accident. No appeal from the decree of dissolution had been filed before the date of death, nor was any filed thereafter. Eighteen months later, on June 2, 1978, Willa filed a motion to dismiss the dissolution proceeding. The trial court denied that motion, from which Willa pursues the present appeal.

Willa's theory in the trial court for her motion to dismiss and that which she urges again in this appeal, rests on the following syllogism. The major premise is that a marriage can be dissolved by either death or a decree of dissolution, and if the death occurs first, then that leaves nothing upon which a court decree can operate. The minor premise is that Stanley's death occurred before the decree of dissolution became final. If those premises be sound, then the conclusion would have to follow logically that the dissolution decree was beyond the power of the circuit court and therefore should have been set aside.

No complaint can be made of the major premise stated above. See In re Marriage of Harms, 563 S.W.2d 781 (Mo.App.1978). However, the minor premise is faulty and cannot be accepted.

In justification of the minor premise that the decree never became final, Willa argues first that the property division improperly rested upon an oral agreement rather than a written one, citing Turpin v Turpin, 570 S.W.2d 831 (Mo.App.1978). ¹ She argues secondly that the agreement and consequently the decree omitted part of the marital assets in that it failed to take into account and failed to distribute a bank account, certain insurance and Stanley's retirement pension. She insists that this failed to follow the mandate of Section 452.330 (all statutory references are to RSMo 1978), and makes the decree incomplete and prevents it from being a final judgment. In so arguing, Willa expressly embraces the proposition that a decree of dissolution is unitary and the dissolution portion cannot be separated from the balance of the decree.

That argument flies directly in the teeth of Section 452.360-1 which provides:

"A decree of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from a decree of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the decree which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal."

That statutory provision has been construed by this court in a manner which unequivocally refutes Willa's position. The opinion in State ex rel. Horridge v. Pratt, 563 S.W.2d 168, 170 (Mo.App.1978) holds:

"It is beyond cavil that the Legislature intended for the decree in a divorce case to be divisible for the purposes of finality. The statutory language asserting the finality of an unappealed from decision of dissolution and the granting of a right of appeal from either provisions as to property, or maintenance, or as to custody, despite that finality of judgment accorded the dissolution portion of the decree, makes it clear that such portions of the decree are separable.

"A recent line of cases has considered the question of finality as to the property portions of the decree when no division or an imperfect division of marital property has been made. Walker v. Walker, 553 S.W.2d 520 (Mo.App.1977); Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977); Pendleton v. Pendleton, 532 S.W.2d 905 (Mo.App.1976). These cases uniformly hold that the property portion of the decree is not final without such a division of marital property and that an appeal will not lie from that portion of the decree which lacks finality. Such holdings do not and could not affect finality of the unappealed decree of dissolution which, by statute, becomes a final decree and again indicates the separability of the issues in a dissolution proceeding."

The cases cited and relied upon by Willa (some of which are specifically referred to in the Horridge opinion) are not to the contrary. The cases so cited stand only for the proposition that where an attack is leveled at elements in a dissolution decree other than the dissolution itself, then the decree is not final for purposes of appeal if full distribution of marital property has not been made. None of those cases involve...