Medlicott v. Medlicott, WD

• Citation: 617 S.W.2d 576
• Decision Date: 04 May 1981
• Docket Number: No. WD,WD
• Parties: Barbara E. MEDLICOTT, Respondent, v. William J. MEDLICOTT, Appellant. 31646.
• Court: Court of Appeal of Missouri (US)

Page 576

617 S.W.2d 576

Barbara E. MEDLICOTT, Respondent, v. William J. MEDLICOTT, Appellant.

No. WD 31646.

Missouri Court of Appeals, Western District.

May 4, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 2, 1981.

Application to Transfer Denied July 14, 1981.

Robert M. Sommers, Neal E. Millert, James, Odegard, Millert & Houdek, Kansas City, for appellant.

Myron S. Silverman, Gage & Tucker, Kansas City, for respondent.

Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.

TURNAGE, Judge.

William Medlicott filed a motion to modify a divorce decree by which his wife Barbara was granted a divorce in 1973. The motion sought a reduction in the alimony provision made for Barbara in the decree and increased by subsequent modifications to the original decree. The trial court held the alimony award to Barbara was contractual in nature and thus not subject to modification and dismissed William's motion.

On this appeal William contends the alimony portion of the original decree was not contractual but was statutory and thus amenable to modification. Affirmed.

Barbara filed a petition for separate maintenance. Thereafter she and William entered into a property settlement. The agreement recited that as an incident to the separation of the parties which had previously occurred, and in order to settle the property rights between them, they thereby agreed upon an adjustment and settlement of all of their respective property rights and interest, present and future, and for the mutual release of any and all claims of any and all nature which either might otherwise have against the other upon the performance of and under the terms and conditions of the agreement. The agreement stated that it was based upon good and valuable considerations flowing from each party to the other.

William agreed to convey the family home to Barbara subject to the encumbrances of record and agreed to transfer the title of one automobile to Barbara and another to one of their sons. The agreement provided that William would pay Barbara "the sum of $1,500.00 per month as support in lieu of alimony ... subject to termination as provided herein or modification by the Circuit Court of Jackson County, Missouri, as provided by law." Termination was provided in the event of Barbara's remarriage, her death, or the death of William. The agreement also provided for child support payments for the two daughters who were age 17, and William obligated himself to pay certain college expenses for all four children.

Provision was also made for reduction in the payments to the wife in the event of William's disability. William also agreed that so long as his obligation to maintain and support Barbara continued that he would maintain policies of insurance on his life for the benefit of Barbara in the amount of $115,000 and she would be designated beneficiary. William agreed to pay the premiums on such policies and to supply proof to Barbara of the payment of premiums.

The parties agreed to retain their own separate personal effects and mutually agreed upon a division of the household goods, furniture and fixtures. The wife also relinquished any claim she had to William's interest in his professional medical corporation, including the pension and profit sharing plan and also her interest in William's investment group.

The agreement further provided that each party agreed to take all steps and execute, acknowledge and deliver any and all instruments of conveyance required to carry out the agreement. The agreement further provided that no modification or waiver of any of the terms of the agreement would be valid unless in writing and executed with the same formality as the agreement itself. William agreed to pay Barbara's attorney fees.

The agreement contained a provision for "adjustments in alimony payments" which provided the $1,500 per month payment to Barbara would be subject to percentage increase or decrease in accordance with the percentage change in the annual average "in the Revised 1967 Consumer's Price Index for Urban Wage Earners and Clerical Workers, Kansas City, Missouri Average, published by the Bureau of Labor Statistics, United States Department of Labor (as revised from time to time), herein called 'Index'." The change in the amount of payments was to be made in March of each year and to be retroactive to January based on the change in the Index.

No change was to be made unless the Index reflected a change of more than one percent and it was further provided that in no event would the amount payable to Barbara be reduced below $1,500 per month.

The agreement further stated:

"It is understood and agreed that this agreement constitutes a full, final and complete property settlement between the parties hereto, and each party hereby releases and forever discharges the other from any and all dower, marital, property, inheritance or curtesy rights, or any other claims, demands or actions of any nature, which now exist or ever existed between the parties hereto, except as specifically provided herein."

The agreement concluded with the statement that it would be "binding upon and inure to the benefit of the parties hereto and their respective heirs, legatees, executors, administrators and legal representatives."

A few days after the execution of the agreement, Barbara filed an amended petition in which she prayed for a divorce, child custody, child support and alimony. Shortly thereafter, Barbara, her attorney and William's attorney appeared in circuit court and advised the court that the matter would be a default divorce. Barbara testified, and, in the course of direct examination, her attorney covered the execution of the property settlement agreement and the terms concerning child custody, support and alimony. A copy of the agreement was marked as an exhibit and admitted in evidence. On cross examination William's attorney asked if Barbara had received all conveyances, transfer of the title to the motor vehicles and conveyances of the home which had been agreed to in the settlement agreement. Barbara acknowledged that she had.

The court entered a decree in which Barbara was granted a divorce, child custody and support. The decree ordered William to pay Barbara as alimony the sum of $1,500 per month "until further order of the court." The decree concluded: "Now, property settlement agreement is entered into."

In March, 1974, Barbara filed a motion to modify the decree. She alleged the entry of the decree and the execution of the property settlement agreement, and quoted the paragraph from the agreement providing for the increase in alimony based on the change in the Index. She alleged the Index had increased for 1973 5.1% over 1972 and requested that the $1,500 per month be increased by that percentage. Within a few days the attorneys for Barbara and William filed a stipulation by which they agreed the alimony portion of the decree could be modified by an increase in the amount stated in the motion. Thereafter the court entered an order modifying the decree to increase the alimony by that amount. In March or April of 1975, 1976, 1977 and 1978, identical motions to modify were filed by Barbara and...