Mason v. Mason, 63722

• Decision Date: 05 April 1994
• Docket Number: No. 63722,63722
• Citation: 873 S.W.2d 631
• Parties: Virginia Frances MASON, Plaintiff-Appellant, v. John W. MASON, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 631

873 S.W.2d 631

Virginia Frances MASON, Plaintiff-Appellant, v. John W. MASON, Defendant-Respondent.

No. 63722.

Missouri Court of Appeals,

Eastern District,

Division Three.

April 5, 1994.

Jack F. Allen, Clayton, for plaintiff-appellant.

Rochelle Kaskowitz, St. Louis, for defendant-respondent.

PUDLOWSKI, Judge.

John and Virginia Mason have been separated for ten years. Their child, Kelly Ann Mason [hereinafter daughter], who will be twenty-one years old on June 1, 1994, has been in and out of schools and has a history of stress-related problems.

In 1985, Mr. Mason (respondent) and Mrs. Mason (appellant) entered into a nonmodifiable separation agreement which was later incorporated into a dissolution decree. Respondent agreed to keep appellant on his employer-provided insurance program for as long as they remained legally separated and to provide her with insurance at his expense should he convert the decree of separation into a decree of dissolution of marriage. He also agreed to provide daughter with insurance and to pay $800 per month in child support until daughter reached age twenty-one or was emancipated, whichever came first. At the time, he was earning $669 per week and appellant was earning approximately $120 per week. ¹

On June 28, 1991, respondent sought to convert the decree of separation into a decree of dissolution of marriage and to modify the contractual and decretal agreement on the grounds that his physical health and the lack of work made it increasingly difficult to continue working sufficient hours to enable him to pay $800 a month in child support and that he would not be able to afford to provide appellant with insurance at his expense after the divorce was finalized. Respondent, who was employed as an ironworker for thirty-seven years, had developed heart and blood pressure problems, tendinitis in the elbow joints and had surgery on both of his knees. His statement of income, filed August 30, 1991, indicated that in 1991 he was earning approximately $410.60 per week. (This would calculate to $21,351.20 per year; however, respondent's tax return showed that he earned $29,557.44 in 1991.) Appellant's income at the time was approximately $214.10 per week.

The trial court converted the decree of separation into a decree of dissolution of marriage and terminated respondent's obligation to provide appellant with insurance. It also reduced the child support payments from $800 to $100 a month, extended the payments until daughter reached twenty-two but conditioned them on daughter's enrollment and attendance in school, and retroactively ordered respondent to render the payments directly to daughter. This appeal followed. We affirm in part and reverse in part.

Citing South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 589 (Mo.App.St.L.D.1975), appellant erroneously contends that because this case involves largely documentary evidence, there is no need for this court to defer to the findings of the trial court and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), does not provide the applicable standard of review. We do not agree. Murphy, which eradicated the de novo and clearly erroneous standards in court-tried cases, Id. at 32, has been consistently applied to cases of this kind. See, In re Marriage of Short, 847 S.W.2d 158, 166 (Mo.App.S.D.1993) (citing Buchanan v. Buchanan, 828 S.W.2d 946, 949 (Mo.App.W.D.1992)); Hamilton v. Hamilton, 817 S.W.2d 937, 939-40 (Mo.App.W.D.1991). Furthermore, because some of the testimony at trial contradicted the documentary evidence, the trial court's assessment of the credibility of the parties is crucial. The trial court's decree will, therefore, stand unless there is no substantial evidence to support it, it is against the weight of the evidence, or it involves an erroneous application or declaration of the law. In reviewing this case, we give deference to the trial court's determination as to the witnesses' credibility and, the evidence, with all of the inferences flowing therefrom is viewed in the light most favorable to the judgment.

We affirm the conversion of a decree of separation into a decree of dissolution of marriage.

Next, we address appellant's claim that the trial court erred when it terminated respondent's obligation to provide appellant with insurance. The relevant part of the separation agreement, which was later incorporated into the dissolution decree, reads as follows:

Husband agrees to keep his wife as insured, on his health insurance policy obtained through his employer so long as husband and wife remain legally separated. Husband agrees to keep his daughter, Kelly Ann Mason, as insured on the same policy until she reaches the age of 21 years or becomes legally emancipated. In the event husband converts the decree of legal separation to a decree of divorce, husband agrees to maintain a policy of insurance on his wife at his expense. In the event his wife converts the decree of legal separation to a decree of divorce, husbands [sic] obligation to provide health insurance for his wife shall terminate but shall continue for Kelly Ann Mason until she reaches the age of 21 years or becomes emancipated. In the event wife obtains insurance through an employer, husband is relieved of his obligations to provide her with insurance.

This agreement shall be contractual and non-modifiable by the court.

Appellant claims that in terminating respondent's duty to provide her with insurance the court overstepped its powers as the contract was expressly nonmodifiable. In response, respondent argues first that the insurance provision contradicts the waiver of maintenance provision in the separation agreement. We disagree. Although insurance is a form of maintenance, See, McAvinew v. McAvinew, 733 S.W.2d 816, 818-19 (Mo.App.W.D.1987), and appellant generally waived maintenance, respondent's explicit agreement to provide her with insurance set insurance apart from other forms of maintenance.

Respondent further replies that the agreement is vague and unenforceable since it fails to specify the type of insurance that he must provide if he converts the decree of separation into a decree of dissolution of marriage. He cites Echele v. Echele, 782 S.W.2d 430, 436-37 (Mo.App.E.D.1989), and Wilson v. Farrow, 583 S.W.2d 545, 546 (Mo.App.E.D.1979), in support of his contention that contractual provisions which do not spell out the boundaries of an agreement are not enforceable. These cases, however, are distinguishable. In Echele, our court held that the lower court's order requiring father to pay for part of his children's post-secondary education was too uncertain and vague to be enforceable, 782 S.W.2d at 436-37. At the time the agreement was executed, however, the children were still in grade school. The trial court, therefore, had no point of reference or limiting criteria to enable it to define the terms of the father's obligation. We noted in Echele that there is a great disparity between the tuition at a vocational school, community college or a private school. Similarly, in Wilson, the court found that a party's agreement to pay for the paving of a road was "so lacking in definiteness and specificity as to render it meaningless and impossible to enforce," 583 S.W.2d at 546. In that case the court noted that because "[t]here were no terms as to the time when the road was to be paved, the materials to be used, the width, depth or length of the road ... [and because] none of the witnesses' testimony shed any illumination on these critical factors ... there [was] no way to measure the extent of defendant's liability regarding the road." Id. at 546. In the case at hand, however, respondent provided his wife with insurance throughout their marriage and legal separation. Based on the couple's history and the absence of any contrary language in the separation agreement, we may assume that the parties intended that respondent provide insurance which is comparable to the employer-subsidized insurance after the divorce was finalized.

Respondent's argument that he was unaware that he was agreeing to such a long-term and nonmodifiable requirement is also insupportable. Missouri law is clear that absent a showing of fraud, a party who is capable of reading and understanding a contract is charged with the knowledge of that which he/she signs. State ex rel. St. Louis Car Co. v. Hughes, 348 Mo. 125, 152 S.W.2d 193, 197 (1941) (citations omitted); Taylor & Martin, Inc. v. Hiland Dairy, Inc., 676 S.W.2d 859, 871-72 (Mo.App.S.D.1984) (citation omitted). The boiler-plate language exception is inapplicable under the facts in this case since both parties were represented by attorneys and the nonmodification clause was in clear, unambiguous, easy-to-read type.

Finally, we address respondent's argument that the trial court was correct in relieving him of his obligation to provide wife with insurance due to changed circumstances. Separation agreements are considered enforceable contracts. See, § 452.325.2; 5 RSMo 1986. Section 452.325.6 RSMo 1986 grants parties the right to enter into nonmodifiable agreements as long as they do not concern the support, custody or visitation of children. See, Kocherov v. Kocherov, 775 S.W.2d 539, 540 (Mo.App.W.D.1989). Absent a showing of unconscionability or contravening public policy the court should not interfere with a couple's nonmodifiable contractual or decretal agreement. Rogers v. Rogers, 743 S.W.2d 130, 131 (Mo.App.S.D.1988) (citations omitted); Seip v. Seip, 725 S.W.2d 134, 136 (Mo.App.W.D.1987). " 'Unconscionability' [is] inequality so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing exclamation at the inequality of it." Peirick v. Peirick, 641 S.W.2d 195, 197 (Mo.App.E.D.1982) (quoting Carter v. Boone County Trust Co., 338 Mo. 629, 92 S.W.2d 647, 658 (banc 1935)). In this case, the court found that the agreement was conscionable when it...