Marriage of Vinson, In re, 17998

• Decision Date: 07 October 1992
• Docket Number: No. 17998,17998
• Citation: Marriage of Vinson, In re, 839 S.W.2d 38 (Mo. App. 1992)
• Parties: In re the MARRIAGE OF Rickey H. VINSON and Sarah S. Vinson. Rickey H. VINSON, Petitioner-Respondent, v. Sarah S. VINSON, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 38

839 S.W.2d 38

In re the MARRIAGE OF Rickey H. VINSON and Sarah S. Vinson Rickey H. VINSON, Petitioner-Respondent, v.Sarah S. VINSON, Respondent-Appellant.

No. 17998.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 7, 1992.

William A. Wear, Jr., James R. Sharp, Wear, Karchmer & Nelms, Springfield, for respondent-appellant, Sarah S. Vinson.

John S. Pratt, James R. Fossard, Pratt & Fossard, Springfield, for petitioner-respondent, Rickey H. Vinson.

CROW, Presiding Judge.

By an amended decree February 3, 1992, the trial court dissolved the marriage of Rickey H. Vinson and Sarah S. Vinson.Sarah ¹ appeals, presenting five assignments of error.We first address point IV, which reads:

The trial court erred in awarding Appellant only fifty percent ... of the marital property because said division ... is not sufficient to support Appellant who is economically dependent in that Respondent is in a considerably better financial position than Appellant who needs a greater percentage of the marital property to maximize her chances of becoming economically self-sufficient.

The parties married March 20, 1971, when Rick was 24 and Sarah 23.One child, Valerie Lynn Vinson, was born of the marriage July 28, 1975.

The trial court awarded the parties joint legal custody of Valerie, with Rick to have "primary physical custody."Sarah assigns no error about the custody plan.

The only marital real estate was the family home.Sarah avowed its fair market value is $45,000, "less the mortgage of $21,366.17, giving a net equity of $23,633.83."The trial court awarded the home to Rick and ordered him to pay the mortgage.Evidently, the court did so in recognition of § 452.330.1(1), RSMoCum.Supp.1991, which requires courts to consider the desirability of awarding the family home to the spouse having custody of children.The court also awarded Rick other marital property.

The marital property awarded Sarah consisted of a motor vehicle, a checking account, and sundry items of tangible personal property.To equalize the division of marital property, the trial court ordered Rick to pay Sarah $17,373.52.

On February 7, 1992, three days after filing her notice of appeal, Sarah executed a "Satisfaction of Judgment" stating:

[Sarah] acknowledges satisfaction in-full of the sum of $17,373.52 as referred to [in] the Amended Decree of Dissolution of Marriage entered on the 3rd day of February, 1992.

The document was filed in the trial courtMarch 12, 1992.

In response to Sarah's point IV, Rick maintains:

[Sarah] has waived any ... claim of error to the ... division of property for the reason that [Sarah] demanded payment of the $17,373.52 awarded by the court, [Rick] paid it and then [Sarah] filed a satisfaction of judgment thus reaping the benefits of the court's ruling.As such she is estopped from claiming error in this appeal.

The authorities cited by Rick include Warren v. Warren, 601 S.W.2d 683, 686(Mo.App.1980), which explains that where the judgment debtor pays and the judgment creditor accepts the full amount of the judgment, it is thereby extinguished.Thus, the general rule is that one may not voluntarily accept the benefits of a judgment and afterwards prosecute an appeal to reverse it.Id. at 687.The right to enjoy the fruits of a judgment and the right to attack it on appeal are inconsistent, and an election to pursue one course is an abandonment of the other.Id. at 687.

In Warren, a decree of dissolution of marriage awarded the wife $10,550 maintenance in gross, payable in monthly installments of $250.After entry of the decree, the ex-husband paid the ex-wife the entire $10,550 in lump sum, along with attorney fees awarded her.The ex-wife acknowledged, in writing, receipt of the maintenance in full.On appeal, she complained the trial court erred in awarding gross maintenance when periodic maintenance should have been decreed.601 S.W.2d at 686.Noting the ex-wife never contended both maintenance in gross and periodic maintenance should have been allowed, id, the appellate court held that by accepting the benefit of the maintenance award, the ex-wife renounced the opportunity to assert she should have received periodic maintenance.Id. at 687.

Among the authorities relied on by Warren was Knebel v. Knebel, 189 S.W.2d 464(Mo.App.1945).There, a divorce decree awarded the wife $200 as "an additional attorney's fee," but denied her prayer for alimony.She appealed.Shortly afterward, the ex-husband paid the attorney fee.He then moved to dismiss the appeal, averring that by accepting the benefit of the decree in regard to the attorney fee, the ex-wife was estopped from appealing from the decree.The appellate court acknowledged the general rule that when a litigant voluntarily accepts the benefits of a decree, he cannot afterwards take an appeal in order to reverse it, as the right to enjoy its fruits and the right to attack it on appeal are totally inconsistent.Id. at 466.However, added the court:

[T]his rule has its exceptions, and one exception is that the acceptance of payment, after judgment, of an item which was never in dispute will not thereby preclude the party from appealing as to the items about which there had been a controversy.In such an instance the two positions are not inconsistent, and the acquiescence in the item not in dispute could not suffice to work an estoppel with respect to any other feature of the judgment.

Id. at 466.

Inasmuch as the attorney fee award was independent of the issue of entitlement to alimony, Knebel held the ex-wife's acquiescence in the satisfaction of the attorney fee did not bar her from appealing the denial of alimony.Id. at 467.

In re Marriage of E.A.W., 573 S.W.2d 689(Mo.App.1978), employed a similar analysis.There, the wife and her sister acquired a 160-acre tract of real estate during the marriage.The decree treated a half interest in the tract as marital property, and awarded the interest to the wife.She appealed, complaining about the division of marital property.While the appeal was pending, she and her sister sold parts of the tract.The ex-husband argued the sales barred his former wife from appealing.

The appellate court acknowledged the general rule barring a litigant who voluntarily accepts the benefits of a judgment from appealing to reverse it.573 S.W.2d at 691.The court then declared:

[P]laintiff [the ex-wife] may still appeal the decree, even though she sold property granted her in the property settlement, if she would have had the right to dispose of the property before the settlement was made.Both plaintiff and defendant agree that title to the property was in the name of plaintiff and her sister before the dissolution decree.Plaintiff would therefore have had the right to dispose of the property before the decree was entered provided the conveyance was not in fraud of defendant's marital rights....

We note that defendant himself has sold property throughout this litigation....Whether the actions of these parties constitute a fraud upon the other spouse's marital rights is not a matter for determination here....We need only conclude that plaintiff had a right, absent fraud on the other spouse's rights, to sell the property both before and after the dissolution decree.Since plaintiff had such a right, her actions in selling the property do not preclude her from appealing the dissolution decree.

573 S.W.2d at 691.

In the instant case, division of marital property was an issue at trial.Sarah had no right to receive $17,373.52, or any other sum, from Rick as part of the division of marital property until the trial court so ruled in its decree.Her right to the $17,373.52 originated in the decree.Consequently, this is not a case like E.A.W., where the wife and her sister owned the 160-acre tract, to the exclusion of the wife's spouse, prior to the dissolution, hence the wife's right to sell it did not spring from the decree.

The instant case is also unlike Knebel.There, the wife's right to attorney fees was unrelated to her claim for alimony; that is, she could be entitled to the former without necessarily having a valid claim for the latter.The sum paid and accepted after the decree was for attorney fees, an item wholly unrelated to the alimony issue.

Here, the entire $17,373.52 was a marital property award.Sarah recognizes this in her brief, arguing the trial court should have awarded her additional cash "to bring her share of the marital assets up to seventy percent."She insists we should remand the case to the trial court"with instructions to award [her] ... $25,695.00, resulting in an award ... of seventy percent of the marital estate."

It appears from the record that at the time Sarah accepted payment of the $17,373.52, she already had all other marital property awarded her by the decree.Thus, upon receiving the $17,373.52, she had her entire award of marital property.

Sarah's circumstances are analogous to those of the ex-wife in Warren, 601 S.W.2d 683, who accepted the entire maintenance award while her appeal was pending.The only difference is that here, the cash was a marital property award, while in Warren the cash was a maintenance award.Consistent with Warren's holding that acceptance of the entire maintenance award barred the ex-wife from seeking additional maintenance on appeal, we hold Sarah's receipt in full of her marital property award forecloses her from seeking additional cash as marital property in this appeal.

In so deciding, we do not ignore Smith v. Smith, 702 S.W.2d 505(Mo.App.1985), cited by Sarah.There, a dissolution decree awarded the wife's lawyer $1,600, and awarded the wife $3,000 "upon an unspecified basis and for an unspecified purpose."An execution requested by the lawyer collected $225.02 by garnishment.The lawyer received the $225.02.The husband moved to dismiss the wife's appeal, asserting it was barred by partial collection of the monetary...