Massey v. Massey

• Decision Date: 31 December 1979
• Docket Number: No. WD,WD
• Citation: 594 S.W.2d 296
• Parties: Mildred P. MASSEY, Appellant, v. William M. MASSEY, Respondent. 30411.
• Court: Missouri Court of Appeals

Page 296

594 S.W.2d 296

Mildred P. MASSEY, Appellant, v. William M. MASSEY, Respondent.

No. WD 30411.

Missouri Court of Appeals, Western District.

Dec. 31, 1979.

Robert E. Sharp, Kansas City, for appellant.

Richard L. Colbert, Kansas City, for respondent.

PRITCHARD, Judge.

The issues are whether the trial court, on August 10, 1978, had authority to set aside and to be for naught held a previous decree of property division and distribution of marital assets entered on Nov. 20, 1975; and whether there was a showing by respondent of changed circumstances since the date of the original decree justifying a reduction of a maintenance award to appellant ex-wife.

The first issue involves the part of the original dissolution decree awarding appellant an undivided one-half interest in respondent's Federal Aviation Administration Employee Retirement Plan (Employee No. 52300), and a one-half interest in all of respondent's U. S. savings bonds. Although respondent did not plead that this portion of the decree was void because of lack of uncertainty, and presented the matter for the first time on this appeal, the trial court undertook to hold it void, apparently under a prayer for other general relief. Because the trial court decided the issue, this court will consider it under the plain error rule in its discretion. Rule 84.13(c). On its face, a judgment which does not state a sum certain, and which requires evidence beyond the record to ascertain the amount due, is void. LaPresto v. LaPresto, 285 S.W.2d 568, 570(2, 3) (Mo.1955), and cases and authority cited; Rodden v. Rodden, 527 S.W.2d 41 (Mo.App.1975); Anno. 55 A.L.R.2d 723. There is, however, another rule that if the trial court has jurisdiction of the parties and subject matter (as originally here), its judgment is not void on its face. Scott v. Scott, 441 S.W.2d 330, 333(4) (Mo.1969). This is yet followed by another rule stated in State ex rel. Whatley v. Mueller, 288 S.W.2d 405, 410(5-7) (Mo.App.1956), "It is elementary that the judgment and its enforcement is the end of litigation, and therefore it is essential that the judgment dispose of the matters at issue so that the parties may be able to ascertain with reasonable certainty the extent to which their rights may be fixed. Freeman on Judgments, Vol. 1, Sec. 72, p. 126. A principle auxiliary to determining whether the judgment meets the above requirements is announced in 49 C.J.S., Judgments, § 72, p. 192, in this language: 'An obscure judgment entry may, however, be construed with reference to the pleadings and record, and, where on the whole record its sense can be clearly ascertained, the judgment will be upheld.' * * * Even though the judgment may not be complete within itself, and contain within its four corners the mandate of the court, it is nevertheless sufficient if it can be made perfect by reference to the pleadings or papers on file in the case. 49 C.J.S., Judgments, § 62b, pp. 182, 183. This rule applies with equal force to the amount of the judgment, 49 C.J.S., Judgments, §§ 76, 442, pp. 198, 199, 873." The trial transcript of the original dissolution proceedings is not before this court, and apparently was not before the trial court in this proceeding. This necessitates reversal of that part of the judgment declaring the previous decree of property division void, and remand for the purpose of ascertaining if the pleadings, files and record (including the transcript) will clarify the original judgment entry. If clarification is not possible, it will require the declaration that this portion of the original decree is void because it is unenforceable. In that event, the matter of division of this marital property will not have been adjudicated, and the matter may be reopened for the purpose of ascertaining the amount of U. S. savings bonds, and the value of respondent's FAA employee retirement plan as of the date of dissolution of the marriage. In connection with this latter determination, if it is necessary, the parties may be guided by this further authority: A husband's retirement benefits may be marital property, In re Marriage of Powers, 527 S.W.2d 949 (Mo.App.1975); Nilges v. Nilges, 564 S.W.2d 262 (Mo.App.1978); Anspach v. Anspach, 557 S.W.2d 3 (Mo.App.1977). It is possible, however, that all of a spouse's retirement benefits would not be marital property, e. g., any portion of rights accruing after dissolution which would be separate property, as would any benefits vesting prior to a marriage. See Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975); what the present value (at the time of the dissolution decree) of the plan was, if a lump sum award is feasible; whether the award shall be a percentage of the pension benefits at the time the same becomes payable (on retirement), and the nature and provisions of the retirement plan. See the various commentaries on these problems: 50 Washington L.Rev. 505, "Community Property-Deferred Compensation"; 24 Hastings L.J. 347, "Retired Pay: A Divorce in Time Saved Mine"; 44 Texas L.Rev. 860, "Community Property Aspects of Profit-Sharing and Pension Plans in Texas"; 42 Missouri L.Rev. 143, "Domestic Relations Husband's 'Vested' Interest in Retirement Plan is Divisible as Marital Property."

A theory that the trial court undertook a "modification" of that part of the judgment awarding marital property could not be here applied because of the express provision of § 452.360(2) RSMo 1978, "The court's...