Messmer v. Messmer

• Decision Date: 21 June 1949
• Docket Number: 27638
• Parties: MESSMER v. MESSER
• Court: Missouri Court of Appeals

222 S.W.2d 521

MESSMER v. MESSER

No. 27638

Court of Appeals of Missouri, St. Louis

June 21, 1949

Not to be reported in State Reports.

Edward W. Tobin, St. Louis, Edward A. Haid, St. Louis, for appellant.

Alvin J. McFarland, St. Louis, for respondent.

OPINION

ANDERSON

This is an appeal by defendant, Nickolas P. Messmer, from the order of the trial court sustaining a motion filed by plaintiff Blanche Messmer, requesting a modification of a divorce decree by increasing the award therein for maintenance of a minor child of the parties.

Plaintiff was granted a decree of divorce on September 26, 1944, and by said decree was given the custody of said minor, Gertrude Messmer. It was also provided in said decree that 'plaintiff have and recover of the defendant, as and for the support and maintenance of said minor child, the sum of $ 43.50 per month until further order of the Court.'

A few days prior to the divorce the parties entered into a written agreement, characterized as a postnuptial property settlement, which reads as follows:

'Post Nuptial Property Settlement Agreement.

'This post-nuptial property settlement agreement made and entered into this 1st day of September, 1944, by and between Blanche Messmer (hereinafter called First Party)

and Nickolas P. Messmer (hereinafter called Second Party) Witnesseth 'Whereas, the parties hereto were married to each other on the 16th day of April, 1930, and there was born of said marriage a daughter, Gertrude, now seven years of age; and

'Whereas, First Party has instituted a suit against Second Party to dissolve the bonds of matrimony and for the custody of said minor daughter, which suit was instituted and is now pending, in the Circuit Court of the City of St Louis, in Division 15 thereof, and is numbered 78669; and

'Whereas, although the Second Party denies that he has been guilty of any misconduct justifying the granting of a decree of divorce to the Party of the First Part, but both parties are convinced that a reconciliation between them is now impossible, and said parties both being desirous of settling all of their property rights and interests and of making provision for the support and maintenance of their said daughter, the said Party of the Second Part is willing to enter into a property settlement agreement with the Party of the First Part, to be effective in the event she be granted a decree of divorce, which property

settlement shall be in full and complete discharge and satisfaction of all rights or claims that said Party of the First Part has or asserts against the said Party of the Second Part, including provision in the nature, and in lieu, of alimony in gross;

'Now Therefore, in consideration of the premises and of the mutual obligations hereby undertaken, and in consideration of the sum of one dollar by each of the parties paid to the other, the receipt of which is hereby acknowledged, the parties hereto have agreed and do hereby agree as follows:

'1. Second Party has heretofore acquired, partly by inheritance from his father and partly by purchase from his sister a plot of ground on which is a two-family brick flat known as Number 4216 Nebraska Avenue in the City of St. Louis, Missouri, title to which property is now in the names of the parties hereto as tenants by the entirety; it is mutually agreed that said lot and flat building are of the present fair value of Ten Thousand Dollars ($ 10,000.00), against which is an unpaid balance of One Thousand Dollars ($ 1,000.00) of a deed of trust executed March 10th, 1941, and renewed March 10th, 1944, for a period of three (3)

years, which mortgage is held by the German-Austrian Benevolent Society. As part consideration of this contract, Second Party agrees to sell and convey to First Party all his right, title and interest in and to said real estate and improvements for the sum of Three Thousand Dollars ($ 3,000.00), subject to any and all liens or encumbrances now against the same, and particularly to the lien of the mortgage or deed of trust above mentioned, which said mortgage or deed of trust First Party shall cause to be released of record and returned to the Second Party, together with the note which said mortgage or deed of trust was given to secure.

'2. Second Party hereby conveys to First Party any and all right, title and interest in and to all household furniture and furnishings, bedding, bed and table linen, silverware, cutlery, chinaware, bric-a-brac, paintings, pictures, curtains, drapes, shades, carpets, rugs, kitchen utensils and other household goods and furnishings now in the premises occupied by them in said flat building, except one wardrobe, one vanity dresser and one radio and lamp which were formerly the property of the father of Second Party, and excepting, also, one Mixmaster,

one toastmaster, one cedar chest and one record cabinet, all of which except articles are, and shall continue to be the sole property of the Second Party and to which the First Party specifically disclaims and renounces any and all right, title and interest. As a further consideration of this contract the Party of the Second Part agrees to arrange for the payment in full of whatever balance remains due and owing on the purchase price of certain new furniture which he has transferred to said Party of the First Part as above, including the balance due on the purchase by him recently of a combination radio which said Second Party is also transferring to said First Party as above, which balance aggregates the sum of approximately Five Hundred Seventy-five and No/100 Dollars ($ 575.00).

'3. Second Party agrees to pay to First Party the sum of Forty-three and 50/100 Dollars ($ 43.50) per month for the support, maintenance and education of their said daughter, Gertrude, such payments to be continued only while said child remains a minor and dependent, such payments to be made monthly on the first day of each calendar month, the first payment to be made on October 1st,

1944.

'4. Second Party now has a policy of insurance on his life for the principal sum of Ten Thousand Dollars ($ 10,000.00), issued by the Provident Life and Accident Insurance Company of Chattanooga, Tennessee; Second Party agrees that he will cause a rider to be issued and attached to said policy designating a named trustee as the payee thereof for the benefit of his daughter Gertrude, which designation shall remain in force only while said child remains a minor and unmarried, and which designation and rider shall provide that if said daughter pre-decease him he may then designate another beneficiary, but if he fail to do so, upon his death the proceeds of said policy shall be payable and paid to his estate.

'5. In consideration of the conveyances to be made, and the obligations assumed, by the Second Party under the provisions of the preceding clauses 1, 2, 3 and 4 hereof First Party does hereby accept the same in full payment of any and all alimony, in gross or otherwise, that the court could or might allow her in the event she is successful in procuring a divorce, and in full of all dower she might have in any property now or hereafter owned by the Second

Party and in lieu, and in full payment, of any other statutory rights to which she might be entitled but for the execution of this property Settlement Agreement.

'The First Party further agrees that so long as Second Party continues to pay her the Forty-three and 50/100 Dollars ($ 43.50) per month provided for in clause three (3) hereof, she will care for, maintain, support, clothe and educate their daughter, Gertrude, and does hereby assume the sole and complete cost thereof.

'The First Party further agrees that she will not ask or seek or accept, from the court above referred to, or any other court, in said proceedings or in any other proceedings, any other or greater provision for alimony, maintenance, or suit money than set forth in this agreement, and that she will not ask said Circuit Court of the City of St. Louis or any judge thereof to include and embody in any decree that may be entered, any provision for alimony, maintenance, suit money or attorney fees other than as provided herein.

'First Party further agrees that Second Party shall have the right to visit, and have temporary custody of their daughter at all reasonable times.

'In Witness

Whereof, the Parties hereto have executed this instrument in triplicate, each of which is an original, on the day and year first hereinabove written.

'(Signed) Blanche Messmer,

First Party.

'Witness as to First Party:

'(Signed) Geo. J. Grellner.

'(Signed) Nickolas P. Messmer,

Second Party.

'Witness as to Second Party:

'(Si

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