McIntyre v. McIntyre
| Decision Date | 09 March 1964 |
| Docket Number | No. 49863,No. 2,49863,2 |
| Citation | 377 S.W.2d 421 |
| Parties | Wilmer E. McINTYRE, Respondent, v. Leona T. McINTYRE, Appellant. . Division |
| Court | Missouri Supreme Court |
Francis M. O'Brien, St. Louis, for appellant.
J. B. Mackler, St. Louis, for respondent.
This is an equity suit for the construction and enforcement of a property settlement agreement made by the parties in contemplation of a divorce and for injunctive relief. The trial court decreed that the defendant be permanently enjoined from exercising control, spending, borrowing, transferring, or in any way using monies in her possession being held for the benefit of the plaintiff or their minor son Dale Alan McIntyre. 1 The decree further provided that the defendant should pay the sum of $21,031.64 into the registry of the court to be held for the use and benefit of Dale until he becomes 21 years of age and in the meantime no payments should be made from the fund except on court order, that the defendant turn over to plaintiff the sum of $18,000 with interest at six percent from the date of the contract, which sum with interest totaled $19,890, and that the plaintiff execute and deliver to the defendant a quit claim deed to certain described real estate located at 2853 Russell Avenue in accordance with the property settlement agreement. The defendant's motion for a new trial was overruled and she has appealed.
The property settlement agreement, dated October 6, 1960, stipulated that it should be performed on November 1, 1960, unless the parties mutually agreed to another date, and a copy of it was filed in the divorce action. The contract recited that the parties were husband and wife but were separated; that a divorce action filed by the wife against her husband was pending; that the parties mutually desired to make a permanent, complete, and final adjustment of all their property; that each of the parties was completely and fully informed as to the financial and personal status of the other, and each was represented by counsel. The contract has 24 numbered paragraphs and contains provisions for the custody and support of Dale, alimony, the disposition of household goods, the family automobile, and other real and personal property.
Sometime after the contract was executed, the parties were divorced. The defendant has remarried and her name is now Thompson. Nevertheless, since the parties in this case are switched from the way they appeared in the divorce action, for the sake of greater clarity, we will sometimes refer to the present defendant as Mrs. McIntyre and the plaintiff as Mr. McIntyre.
The property settlement contract was drafted by the attorney representing Mrs. McIntyre in the divorce action. In the present case she is represented by different counsel. The divorce attorney testified he typed the contract at home one night, apparently shortly before the divorce case was set; that while doing so he conferred with her by telephone to secure additional information, and that she read the contract and he explained it to her before she signed it. A substantial part of the financial means of the parties consisted of savings accounts on deposit with banks and savings and loan associations in St. Louis and Sparta, Illinois. The accounts were in various names or combinations of the names of the parties; some of them included the name of the son Dale as a joint tenant, a survivor, or as a beneficiary of a trustee account. Apparently Mrs. McIntyre had possession of the passbooks but they were not available to her attorney when he drafted the settlement agreement. Consequently the division and disposition of the cash in the savings accounts was described for the most part by general terms in the contract and without regard to the number of the account, the depositary, the names of the depositors, or the correct amount on deposit.
In fact the record is far from satisfactory as far as the appellate court is concerned. While on the witness stand, Mrs. McIntyre produced a number of savings account books and testified with respect to these and other matters. The description of the accounts as stated into the record is fragmentary and incomplete. None of the books or other records were marked as exhibits or introduced in evidence although there was a suggestion at one point that this ought to be done. The situation was undoubtedly quiet clear to the trial court and counsel with the books and records before them, but the review by this court is limited by the fact that the record before us does not give the complete picture. Neither party objected to this procedure; nevertheless, where a witness is permitted to give incomplete and fragmentary testimony as to the contents of records which are not introduced in evidence, it is impossible for an appellate court to obtain a clear understanding of the facts, and the practice should be discouraged. Paden v. Morris & Co., Mo.App., 251 S.W. 424, 426.
The only witness in addition to Mrs. McIntyre was the attorney who drafted the settlement agreement. He testified to the conditions under which the contract was drawn. In her supplemental answer and counterclaim, the defendant prayed that the contract 'be set aside because of mutual mistake and misunderstanding' and further that 'the Court construe the contract * * * and reform said contract in accordance with its construction or in the alternative to rescind said contract because of its ambiguity * * *.' There is no evidence which justifies setting aside, reforming, or rescinding the contract, and the trial court did not err in refusing to grant the relief requested in the defendant's counterclaim.
At one point in her brief, Mrs. McIntyre states that 'the construction of the agreement and particularly Paragraphs Tenth and Twelfth were put in issue' in the trial court. At another point she states that paragraph Twenty-Third provides for the payment of $10.00 per month to her in lieu of alimony and that Mr. McIntyre claims this provision is void by reason of her remarriage. No issue was made by the pleadings or the evidence regarding alimony and the trial court did not adjudicate any such issue. On the record and briefs of the parties, no such issue is presented for review in this court.
In the settlement contract, the wife Leona T. McIntyre was referred to as the first party, and the husband Wilmer E. McIntyre was the second party. The paragraphs of the contract designated by the defendant as the subject matter of this controversy read as follows:
'Tenth: First party and second party mutually agree that any bank accounts, savings accounts or accounts or property of any kind whatsoever which is in the name of Dale Allen McIntyre at the time of the execution of this agreement shall remain for the sole account and use of the said Dale Allen McIntyre and neither party shall use any of said funds for his or her own personal use.'
On the evidence adduced the court made these findings of fact:
'1. That the parties hereto entered into a Stipulation on the 6th day of October, 1960, which Stipulation was prepared by Defendant and executed by both parties.
'2. That under the terms of said agreement all bank accounts, savings accounts or...
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