McKenzie v. McKenzie, WD
| Decision Date | 01 February 1983 |
| Docket Number | No. WD,WD |
| Citation | 646 S.W.2d 897 |
| Parties | Larry Dale McKENZIE, Respondent, v. Saralyn Suzette Lou McKENZIE, Appellant. 33535. |
| Court | Missouri Court of Appeals |
Robert G. Smith, Brookfield, for appellant; Smith & Elson, Brookfield, of counsel.
Michael L. Midyett, Keytesville, for respondent.
Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.
The sole issue is whether the trial court should have sustained an application of appellant for change of judge filed by her two days before trial of her motion to set aside marital settlement and separation agreement. A decree of dissolution of the marriage of the parties had been entered after hearing of evidence on November 5, 1981, at which time the court took the matter of the property settlement and custody of the child under advisement, and continued the case to December 10, 1981.
These further events took place during the course of the proceedings: There was attached to the petition for dissolution the property settlement agreement which listed the marital property of the parties, and the court was requested to divide it in accordance with the agreement. Both parties testified with respect to the property settlement agreement on November 5, 1981. Respondent told the court that there was a complete list of property that each was to receive; the values shown thereon were the fair market values; the list (for each) was a fair portion between the parties; a $3,000 lump sum was to be paid to appellant in addition to other property; each were to pay certain debts incurred by them on property set off to each; appellant was to receive no maintenance; respondent's net income was $800 every two weeks; and he was to pay his attorney fees and the costs. Appellant, appearing without counsel, told the court that she signed the agreement; she had a copy of it since October 2, 1981; the matters set forth in it were agreeable to her; the property she was to receive included the automobile and a list of personal property; and the values set forth on the property were fair and equitable as were the values on the property set over to respondent. She asked the court to approve the agreement.
On December 7, 1981, appellant filed her motion to set aside the marital settlement agreement, alleging only that she did not receive any legal advice as to a division of the property, and filed a notice requesting that the motion be heard on December 10, 1981. On that date the parties appeared by counsel and agreed to pass the matter until January 7, 1982, on which date the case was further continued by agreement until January 14, 1982, and the matter of the marital settlement was "taken under advisement" until the motion to set it aside was heard on January 14, 1982, at 1:00 p.m.
On January 12, 1982, appellant filed her request for change of judge with a notice that it be heard at 1:00 p.m., on January 14th, at which time it was overruled by the court. The court then took...
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...Nor may an application for change of judge be used to subvert proceedings already begun by a trial court. In McKenzie v. McKenzie, 646 S.W.2d 897 (Mo.App.1983) a decree of dissolution of marriage had been entered after an evidentiary hearing on November 5, 1981, and at that time the trial c......
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Harmon v. Schultz
...as such, but merely allowed the taking of additional evidence in the case. Similarly, appellant's 51.05 application in McKenzie v. McKenzie, 646 S.W.2d 897 (Mo.App.1983), filed within five days after a continuation of the hearing on her motion to set aside the parties' marital settlement ag......
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Wintz v. Hyatt Hotels Corp.
...Being pari materia, they must be considered and construed with reference to each other." And in that connection, see McKenzie v. McKenzie, 646 S.W.2d 897, 899 (Mo.App.1983), holding in construing Rule 51.05 (being in pari materia with Rule 51.04 under the Smith case, supra) that a motion fo......