McKee v. McKee, 20839

• Decision Date: 26 March 1997
• Docket Number: No. 20839,20839
• Citation: 940 S.W.2d 946
• Parties: In re the Marriage of McKEE: Fred Michael McKee, Petitioner-Appellant, v. Levina Lynn McKEE, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 946

940 S.W.2d 946

In re the Marriage of McKEE: Fred Michael McKee, Petitioner-Appellant, v. Levina Lynn McKEE, Respondent-Respondent.

No. 20839.

Missouri Court of Appeals,

Southern District,

Division Two.

March 26, 1997.

Robert M. Sweere, Springfield, for petitioner-appellant.

Gary W. Lynch, Douglas, Lynch, Haun & Kirksey, Bolivar, for respondent-respondent.

SHRUM, Judge.

In this domestic relations case Fred Michael McKee (Husband) appeals from a judgment dissolving his marriage to Levina Lynn McKee (Wife). He challenges the portions of the judgment ordering him to pay maintenance, dividing marital property, and assessing as costs the fees of an expert witness.

Wife moved for dismissal of Husband's appeal on the theory that Husband accepted the benefits of the judgment. We deny her motion.

We reverse that portion of the judgment ordering Husband to pay retroactive maintenance and assessing Husband to pay Wife's expert witness expenses as a cost. In all other respects, we affirm the judgment.

MOTION TO DISMISS APPEAL

Wife asks this court to dismiss Husband's appeal. Her request for dismissal relies on the general rule that a party "who has voluntarily and with knowledge of all the material facts accepted the benefits of a decree or judgment of a court cannot afterwards take or prosecute an appeal to reverse it." In re Marriage of Tennant, 769 S.W.2d 454, 455 (Mo.App.1989). Wife asserts that the general rule stated in Tennant applies here because Husband benefited when he sold the marital residence that was awarded to him in the dissolution decree for substantially more than the value placed on it by the court; hence, we should dismiss Husband's appeal. We disagree.

The rule regarding voluntary acceptance of judgments "has its exceptions." Knebel v. Knebel, 189 S.W.2d 464, 466 (Mo.App.1945).

"Whether or not the acceptance of partial payment of a judgment constitutes an exception is to be decided on a case to case basis considering all relevant circumstances. Included in the factors which have been considered in finding such an acceptance to be an exception to the general rule are the following: ... the amount accepted has effectively been conceded to be due by a [wife] who did not appeal ...; the acceptance of benefits was due to financial distress ...; the absence of prejudice to the judgment debtor [wife] ...; and where the only issue on appeal is whether an award will be increased.... It has been observed 'the general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved.' "

Smith v. Smith, 702 S.W.2d 505, 506-07 (Mo.App.1985) (citations omitted). See Reynolds v. Reynolds, 861 S.W.2d 825, 829 (Mo.App.1993).

In this case, the January 1996 dissolution judgment awarded the marital residence at 4130 N. Haven, Springfield, Missouri, (Haven property) to Husband. It was valued at $73,000. The property was subject to a deed of trust lien of $41,174.49. Husband was ordered to pay that lien which called for monthly payments of $695.89. He was also ordered to pay Wife $22,118.79 to equalize the division of marital property. Maintenance of $900 per month retroactive to August 1, 1994, was awarded to Wife. Additionally, Husband was ordered to pay the court costs. The fee of an expert witness Dr. Hills, was taxed as part of the costs.

As the parties' dissolution case developed, Husband was fired from his job, either collusively or in actuality. ¹ Consequently, in the period from January through April 1996, his income was not sufficient to pay his monthly real estate loan installments, his maintenance obligation, or make payments on his other judgment debts. In March 1996, Husband borrowed $3,000 to cure some delinquencies in his house payments, but realized that he was facing foreclosure of the real estate loan. Consequently, on April 9, 1996, he listed the property for sale.

Earlier, on April 2, 1996, Wife commenced her efforts to collect the sums owed her under the decree. On that date, Wife's counsel sent a letter to the Greene County Sheriff with instructions and forms for Notice of Levy and Notice of Sheriff's Sale of Real Estate Under Execution. On April 15, 1996, the Greene County circuit clerk issued an order of execution at Wife's request. The order directed the sheriff to sell the marital property in an effort to collect Wife's $22,118.79 equalization payment, $19,710.02 in delinquent maintenance, and accrued interest. The total amount claimed was $42,273.74. The execution was served on Husband on April 18, 1996. The sheriff completed the Notice of Levy form and filed it with the recorder's office on April 18, 1996. He scheduled the execution sale for July 5, 1996. In an additional collection effort by Wife, she caused a garnishment to be served on Husband's account at Birch Tree Financial Services on April 29, 1996.

In an affidavit by realtor Williams filed with this court, he says that he showed the marital property to prospective purchasers (Olsens) on April 13 or 14, 1996. Olsens made an offer of $98,000 for the property on April 14, 1996. Husband accepted the offer the next day, April 15, 1996. The sale to Olsens was closed June 3, 1996. At closing Wife delivered a quit-claim deed and received $45,060.99 in satisfaction of sums owed her under the dissolution decree.

Applying the factors listed in Smith, 702 S.W.2d at 506-07, to this case, we find that Husband's sale of the marital house was not a voluntary acceptance of the benefits of the dissolution decree that mandates dismissal of his appeal. The marital real estate which he accepted had been effectively conceded by Wife to be Husband's property; she did not appeal. See Smith, 702 S.W.2d at 506. Moreover, Husband was in financial distress, perhaps in part of his own making, but also due to Wife's collection efforts via executions against the real estate. Id. at 506-07. However, we note that even if Husband's last full-income amount was imputed to him, he still would have been under significant financial distress, necessitating that he accept and sell the real estate. This we discern from the magnitude of his monthly obligations, i.e., $900 for maintenance, $695.89 house payment, utilities, insurance, living expenses, and the need to satisfy his judgment obligations. Missouri law indicates that payment of a judgment after execution or garnishment in aid of execution is considered involuntary. Countryman v. Seymour R-II School Dist., 823 S.W.2d 515, 519 (Mo.App.1992); Kinser v. Elkadi, 654 S.W.2d 901, 903 (Mo.banc 1983). We also note that Wife has not demonstrated any prejudice because Husband sold the real estate. See Smith, 702 S.W.2d at 507. To the contrary, she received all of her judgment amounts as a result of the sale, whereas if the real estate had been sold under distress, whether as a foreclosure or an execution sale, the sale may not have produced enough to pay all of her judgment liens. In making this observation, we deem it significant that by June 1996, the total real estate liens exceeded the $73,000 value that was assigned to the property by the trial judge.

Upon our review of the peculiar situations of the parties in this case and given the equitable considerations involved, we are not persuaded that Husband's appeal should be dismissed. Accordingly, we deny Wife's motion to dismiss Husband's appeal.

FACTS

The parties were married February 14, 1988, and ceased living together in July 1994. There were no children born of the marriage. At the time of trial, Husband was 59 and Wife was 50.

During the marriage, Wife changed jobs and quit her last job with Med-Pay Inc., in May 1994. Wife suffered from rheumatic fever as a child and, as a result, had metal valves placed in her heart. During the marriage, Wife began experiencing episodes of atrial fibrillation. Wife testified that she resigned from her position at Med-Pay due to her heart condition. She did not seek other employment on the advice of her doctor.

Husband was employed throughout the marriage by Tri-Lakes Express, a trucking firm owned by Bob White (White). However, he quit that employment in August 1994. Husband testified he was given an ultimatum by White forcing him to resign or be fired. Husband set up a computer programming business on his own. He also applied for jobs from various employers in the trucking industry. Yet, at the time of trial he was working only through his programming business.

For the first years of the marriage, Husband and Wife lived at his home on 1046 W. State, Springfield (State property). In 1991, they moved to the Haven property. Husband continued to own the State property until the summer of 1993. The trial court divided the marital property, awarding Husband the Haven property, the 1988 Ford pickup truck, two accounts with Birchtree Financial Services, and other personal property. Wife was awarded an equalization payment of $22,118.79 and other personal property. Wife was also awarded maintenance. This appeal followed.

Additional facts will be set out as needed throughout the course of this opinion.

SCOPE OF REVIEW

Our review is governed by Rule 73.01(c) and the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). Mistler v. Mistler, 816 S.W.2d 241, 245 (Mo.App.1991). Thus we must affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d at 32. Within the confines of the law and the evidence, the trial court has discretion in awarding maintenance, Franke v. Franke, 747 S.W.2d 202, 203 (Mo.App.1988) and dividing marital property, In re Marriage of Lafferty, 788 S.W.2d 359, 361 (Mo.App.1990).

DISCUSSION AND DECISION

Point I: Retroactive Maintenance

The trial court's Judgment and Decree of Dissolution,...