McCarty v. McCarty

• Decision Date: 08 April 1957
• Docket Number: No. 45402,No. 2,45402,2
• Citation: 300 S.W.2d 394
• Parties: Betty Jane McCARTY, Appellant, v. James M. McCARTY, Respondent
• Court: Missouri Supreme Court

Page 394

300 S.W.2d 394

Betty Jane McCARTY, Appellant, v. James M. McCARTY, Respondent.

No. 45402.

Supreme Court of Missouri, Division No. 2.

April 8, 1957.

Russell N. Pickett, Eugene E. Andereck, Phil Hauck, Pickett, Andereck & Hauck, Trenton, for appellant.

Thomas P. Rose, Jefferson City, for respondent.

STOCKARD, Commissioner.

On February 20, 1954, respondent, James M. McCarty, was granted a divorce from appellant, Betty Jane McCarty, by the circuit court of Putnam County. Appellant filed this suit in equity seeking to set aside the divorce and to have declared null and void a warranty deed and a property settlement executed prior to the divorce in contemplation thereof. The trial court entered a general judgment for respondent from which appellant has appealed.

The issues pertaining to the validity of the warranty deed directly affect title to real estate so this court has jurisdiction. Cleary v. Cleary, Mo.Sup., 273 S.W.2d 340; Walton v. Van Camp, Mo.Sup., 283 S.W.2d 493.

The testimony is conflicting. In fact there are but few occurrences about which any two witnesses could agree. The statement of facts, or to use a more correct expression, the statement of the conflicting versions of the parties, necessarily must be lengthy.

Appellant's version: On February 1, 1954, respondent told his wife that he was going to the office of his attorney to talk about obtaining a divorce. He later called her by telephone and said that his lawyer wanted to talk to her. She objected, but he came to the house and took her to his lawyer's office. When she arrived the 'papers' were already typed. She was told that she did not need a lawyer because that would only increase the expense, and that she would be protected and treated fairly. She signed an 'Entry of Appearance' whereby she entered her appearance as defendant in the divorce suit, waived the issuance and service of summons, and agreed that the suit for divorce could be set down for trial on any day. She also signed a warranty deed whereby she and her husband conveyed the title to their home, which was held by the entirety, to a straw party. This was done pursuant to a property settlement which she also signed and by which she released all her interest 'in the house and lot, furniture, car and all other property, both real, personal or mixed' in consideration of the payment to her of the sum of $500 and the agreement of her husband to pay $25 a month for support and maintenance of their four-year-old child while she had custody of him. She was told that if her husband decided to go ahead with the divorce, the suit would be filed in Grundy County, the residence of both parties, and she would be notified and could be present at the trial. Nothing was said at any time to indicate that the divorce was to be obtained in Putnam County. The copy of the entry of appearance shows that in the caption and in the body thereof the word 'Grundy' was erased and the word 'Putnam' was then typed in. At the time she signed the entry of appearance the words 'Grundy' appeared in both places. She was never advised that the petition for divorce was filed in Putnam County, and no summons was served on her and no answer or other pleading was filed in her behalf. With no notice to her, a default judgment for divorce was obtained in the circuit court of Putnam County, on February 20, 1954. Appellant stated that she was in the lawyer's office only about fifteen minutes, and following that conference until the time the divorce was obtained her husband continued to live with her and they continued their marital relations. During this time nothing was said about the divorce, and on the morning of February 20 her husband told her that he was going to a meeting. He returned in the afternoon and told her that the divorce had been obtained that day. She filed no motion with the court granting the divorce, and she took no appeal.

Respondent's version: 'On February 1, 1954, appellant told respondent that she had talked to a lawyer, whom she would not identify, concerning a divorce, and that if he did not get a divorce, she would do so. The parties discussed the question of custody of their child, and respondent then went to see his lawyer. After he had discussed the matter with his lawyer, he went to his home and brought appellant to his lawyer's office. She was not represented by an attorney, and respondent's lawyer advised her that he was representing him only but that she could have an attorney if she wanted one. (We note that the lawyer then representing respondent was not the lawyer representing him on this appeal, and that the lawyer was the personal attorney for Hayes McCarty, respondent's father.) The lawyer 'explained' to appellant 'the law of child custody,' and he also explained 'her rights in the properties of the parties.' Precisely what was said is not shown. Appellant wanted a cash settlement so that she could return to Texas, and the lawyer, believing that the parties were going to agree on a property settlement, instructed his secretary to prepare 'divorce papers,' including a property settlement. The secretary typed the forms of the property settlement, warranty deed, entry of appearance and petition for divorce in that order. The entry of appearance contained the words 'Grundy County' in the caption and the body thereof. However, just as she finished typing the entry of appearance, the parties decided that they wanted the divorce proceedings held in Putnam County in an effort to avoid publicity, and at the instruction of respondent's lawyer she erased the word 'Grundy' and typed in the word 'Putnam.' This was done before the entry of appearance was signed. Respondent testified that his wife was the one who suggested the amounts of $500 as a property settlement and $25 per month for child support. These figures were inserted in the property settlement and the parties signed it. Both parties wanted to know when the divorce proceedings would be held and the lawyer called the circuit judge by telephone and made arrangements for the proceedings to be held at ten o'clock in the morning of February 20, 1954. Appellant was present when the call was made and she was then advised of the time and place of the hearing. According to respondent the appellant was in the lawyer's office about an hour and a half. Between February 1st and 20th respondent drove trucks on the road and he could not recall if he stayed at his home in Trenton over the weekends during that period. Neither could he recall what his conversation were, if any, with his wife on the morning of the hearing on the divorce petition. He admitted that he was cordial to his wife, but he denied that he resumed marital relations with her. A few days after the divorce a check in the amount of $500 was offered to appellant but she refused to accept it. The lawyer then gave her $500 in cash and obtained a receipt. Appellant expressed no dissatisfaction about the divorce or the property settlement, and about three weeks after the divorce she returned to Texas where her father lived. On June 1, 1954, respondent married Elmira Adalaide Boone, a divorcee with two children, with whom he had become acquainted in Kansas City before the divorce.

Independently of the divorce, appellant challenges the property settlement and the warranty deed executed pursuant thereto. Therefore, we shall set forth the evidence concerning the property owned by appellant and respondent. Title to a six-room house and adjacent lot in the city of Trenton was in their names but Hayes McCarty had paid all the consideration therefor. When this house was purchased another house was also purchased and title to it was taken in the name of Hayes McCarty and his wife. Respondent and appellant and Hayes McCarty and his wife executed a deed of trust on both houses as security for a note in the amount of $6,200 which also was signed by all four of these persons. Hayes McCarty had made 34 payments of $100 each on the note, leaving a balance of $2,800 due at the time of trial. Respondent had made no payments on the note. There was evidence that the house which was in the name of appellant and respondent was worth $5,000 to $5,500 at the time of the divorce, but Hayes McCarty testified that the house cost about $4,000. He also testified that 'whenever we bought the houses and when they [appellant and respondent] moved in, it was supposed to be their house.'

Respondent worked for Hayes McCarty in his trucking business and was paid $50 per week. Appellant also worked irregularly for the trucking company making collections and sorting statements, but there is no evidence that any payment of wages was ever made to her. However, bills for such items as taxes, auto licenses, coal for the house, and professional services of doctors and dentists were paid by checks drawn on the Trenton Motor Express or the McCarty Truck Line, trucking businesses owned or controlled by Hayes McCarty.

When the parties lived in Texas they purchased an automobile. Appellant paid $1,000 down for that car and made payments of $100 per month by a deduction from her salary until the unpaid balance was reduced to $200. This automobile was traded for a later model car which in turn was traded for a 1953 Mercury automobile. Trenton Motor Express made all the payments on the 1953 Mercury which was worth approximately $1,500 at the time of the trial. The allowances made for the two cars when traded in are not shown.

The household furnishings consisted of the usual items of furniture, including a range, electric refrigerator, an electric sewing machine, an electric mixer, a set of silverware that cost $100, a toaster and a waffle iron. Appellant owned as her own property a set of dishes which had cost $350, and which apparently was considered to have been released to respondent by reason of the property settlement. Appellant estimated the furniture to be worth $1,000, but respondent placed a value on it...