Marriage of Rickard, In re, 17319

• Decision Date: 25 October 1991
• Docket Number: No. 17319,17319
• Citation: 818 S.W.2d 711
• Parties: In re MARRIAGE OF Ruth RICKARD and Cliff RICKARD. Ruth RICKARD, Petitioner/Respondent, v. Cliff RICKARD, Respondent/Appellant.
• Court: Missouri Court of Appeals

Page 711

818 S.W.2d 711

In re MARRIAGE OF Ruth RICKARD and Cliff RICKARD.

Ruth RICKARD, Petitioner/Respondent, v. Cliff RICKARD, Respondent/Appellant.

No. 17319.

Missouri Court of Appeals, Southern District, Division Two.

Oct. 25, 1991.

Motion for Rehearing or Transfer to

Supreme Court Denied

Nov. 15, 1991.

Application to Transfer Denied Dec. 17, 1991.

H. Lynn Henry, West Plains, for respondent.

David G. Neal, Eminence, for appellant.

MONTGOMERY, Judge.

This case is the continuation of an action for dissolution of marriage between Ruth Rickard and Cliff L. Rickard. ¹ Ruth and Leapy were married September 20, 1967, and separated August 21, 1983. On January 12, 1985, the trial court (a) dissolved the marriage of the parties; (b) set apart non-marital property to each party; (c) determined the nature and extent of marital property valued at $340,986, awarding all of it to Leapy; (d) ordered Leapy to pay Ruth $180,000 in cash, for her "interest in the marital property"; (e) ordered Leapy to pay Ruth $500 monthly maintenance and $7,000 as "additional attorney fees." Both parties appealed.

In Rickard v. Rickard, 708 S.W.2d 344 (Mo.App.1986), we affirmed that portion of the decree which dissolved the marriage and, in all other respects, the decree was reversed. The case was remanded for retrial on remaining issues because Hoffmann v. Hoffmann, 676 S.W.2d 817 (Mo. banc 1984), adopted the "source of funds" rule. Sumners v. Sumners, 701 S.W.2d 720 (Mo. banc 1985), held the source of funds rule applied to a dissolution of marriage action which was tried prior to the publication of the Hoffmann opinion and was pending on appeal at the time of that publication. Like Sumners, we remanded because the record had not been developed sufficiently to permit application of the source of funds rule.

Retrial of the remaining issues took place on June 27, 1990. On November 16, 1990, the trial court entered its "Findings of Fact, Conclusions of Law, and Judgment."

The judgment of the trial court:

(a) Awarded Leapy all marital property in Petitioner's Exhibit 220 (valued at $2,763,470.60), except a 1978 Chevrolet pickup (valued at $2,000) which was awarded to Ruth;

(b) Ordered Leapy to pay Ruth $500,000 "as her share of the marital property";

(c) Awarded Ruth, as her non-marital property, those items in Petitioner's Exhibit 46 (valued at $1,190);

(d) Awarded Leapy, as his non-marital property, those items in Petitioner's Exhibit 241 (valued at $575,278.26);

(e) Awarded no maintenance to either party;

(f) Ordered Leapy to pay Ruth $25,000 for attorney fees and expenses of litigation;

(g) Taxed costs against Leapy.

Leapy appeals from the judgment of November 16, 1990. His brief presents six assignments of error.

In his first point, Leapy maintains the decree is null and void. He reasons that the case was remanded to give the parties an opportunity to develop the record in order to apply the "source of funds" rule in Hoffmann. But, prior to trial, § 452.330, RSMo Supp.1989, was revised in 1988 which nullified the source of funds rule. Since the purpose for remand was nullified, the proceedings in the trial court were null and void. We disagree.

In Rickard, supra, we affirmed the dissolution of marriage and the remainder of the decree was reversed. Certainly, the reason for the reversal was Hoffmann, supra. However, our mandate to the trial court required a decision on the remaining issues such as maintenance, attorney fees, and classification and distribution of property. The decree of November 16, 1990, fulfilled that requirement.

Leapy points us to Enyeart v. Shelter Mut. Ins. Co., 784 S.W.2d 205 (Mo.App.1989). There the issue was whether the trial court, on remand, followed the appellate decision under the doctrine of law of the case. Enyeart, supra, relied on State ex rel. Curtis v. Broaddus, 238 Mo. 189, 142 S.W. 340, 342 (Mo.1911), quoting this portion:

'It will be perceived, however, that while this court reserves, as it must, the right to re-examine its former decision in the same case, upon the same state of facts, that right is not accorded to the lower court. If this court makes a mistake, either as to the law or the facts of the case, as may happen, inasmuch as the court is composed of human judges, it has the power--fortunate that it is so--to correct that mistake by reversing itself on a second appeal; but it by no means follows that the trial court or the Court of Appeals has the same right in this regard. On a point, once decided by this court, comes before either the circuit court or the Court of Appeals and further proceedings in the same case, neither of the court's last named has jurisdiction to overrule this court * * *

The same proposition has been recently restated by Judge Shangler of this court in Davis v. J.C. Nichols Company, 761 S.W.2d 735, 737 (Mo.App.1988) as follows:

'The initiatives open to a trial court on remand are as rendered in the mandate and opinion of the appellate court [citing]. Where a remand is with directions, a trial court is bound to render judgment in conformity with the mandate [citing]. The trial court is without power to modify, alter, amend or otherwise depart from the appellate judgment. Its proceedings contrary to the directions of the mandate are "null and void" [citing].'

Enyeart, 784 S.W.2d at 208.

Our mandate to the trial court was followed, and its proceedings were not contrary to our direction. Following our directions, a decree was entered after retrial disposing of the remaining issues. Whether Hoffmann, supra, was overruled by § 452.330.2(5), RSMo Supp.1989, need not be decided, and we decline to do so. Our duty is to review the case pursuant to Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), to ensure the trial court properly declared and applied the law. Leapy does not argue that the trial court erroneously declared or applied the law. He states, in effect, that the trial court, after remand, retained a valid decree regarding division of property with only the option to modify or affirm it. He is incorrect, and this point is denied.

The next point is that the trial court erred by determining the date for valuation of the property was the date of retrial (June 27, 1990), rather than the date of dissolution of marriage (January 12, 1985). In particular, Leapy claims the parties stipulated to the exact extent and value of all property in the earlier trial which was binding on retrial.

We first discuss the stipulation in the earlier trial. On August 16, 1984, Leapy and Ruth stipulated: [relevant portions]

The parties hereby stipulate and agree that the following items are true, constitute competent evidence, and may be accepted by the court without further proof:

....

2. Parties have submitted separate inventories of marital and non-marital property but agree that the itemization of the property, the designation of the date[s] of acquisition, the purchase price, and the present fair market value[s] are identical. All other entries upon the schedules remain in dispute, particularly whether items are marital or non-marital ... [and] the extent of the interest each has in the property.

This stipulation was filed the day the first trial commenced.

To support his position, Leapy cites Edwards v. Hrebec, 414 S.W.2d 361 (Mo.App.1967), and McDonald v. City of Lake Lotawana, 721 S.W.2d 200 (Mo.App.1986). He quotes from Edwards, supra:

A stipulation fairly entered into as to some fact in issue at trial becomes a part of the record and is binding upon the parties and the court upon a subsequent trial of the same action, provided its terms do not limit it to a particular occasion, object or proceeding.

Edwards at 366.

First, we believe the stipulation clearly implies a limitation only as to the dissolution proceeding on August 16, 1984. It was filed the day of trial for the particular occasion then before the parties. Secondly, we question the document as being a binding stipulation in the first place. The parties only agreed that their separate inventories and values of property were identical. We read the "stipulation" only as advising the trial court the inventories and values of property were the same and could be accepted into evidence without further proof. We do not agree that a binding agreement arose from the stipulation as required in Edwards, supra.

The McDonald case only holds that a stipulation dispenses with proof of a matter stipulated, and one who stipulates waives his right to advance a subsequent contention contrary to the stipulated facts. This case is not in point. We hold the stipulation, if any, was not binding on the parties at retrial.

A more difficult question under this point is the valuation date of the property. Regardless of the stipulation, Leapy believes the valuation date to be January 12, 1985. We disagree.

Leapy incorrectly asserts in his brief that only two cases in this state consider the correct date for valuation of marital and non-marital property. He cites Sauer v. Newman, 666 S.W.2d 811 (Mo.App.1984), and Hedgecorth v. Hedgecorth, 696 S.W.2d 862 (Mo.App.1985). He tells us these cases reached opposite results, but we read the cases in harmony.

Hedgecorth was a post-dissolution equity proceeding. Wife sought to obtain a portion of her former husband's retirement plan where the settlement agreement and decree failed to mention the retirement plan. The dissolution of marriage decree was entered October 8, 1980, and on July 31, 1982, husband withdrew the total amount of his retirement fund. The trial court divided equally the amount withdrawn on the latter date. The appellate court determined that the wife was entitled to no share of contributions made to the retirement fund by husband after date of dissolution, and an equal division of the retirement plan as of date of dissolution was proper, plus interest earned on her share from date of dissolution to withdrawal date.

Sauer was a...