Naunheim v. Naunheim, ED 90893.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLawrence E. Mooney
Citation268 S.W.3d 462
PartiesChristopher Hawes NAUNHEIM, Respondent, v. Mary Elizabeth NAUNHEIM, Appellant.
Docket NumberNo. ED 90893.,ED 90893.
Decision Date28 October 2008
268 S.W.3d 462
Christopher Hawes NAUNHEIM, Respondent,
Mary Elizabeth NAUNHEIM, Appellant.
No. ED 90893.
Missouri Court of Appeals, Eastern District, Division Two.
October 28, 2008.

James J. Leightner, St. Louis, MO, for appellant.

Sanford J. Boxerman, Stephen T. Hamby, St. Louis, MO, for respondent.

[268 S.W.3d 463]


The wife, Mary Naunheim, appeals the judgment entered by the Circuit Court of St. Louis County dismissing with prejudice her motion to divide undivided property, which she filed in the dissolution action six years after judgment. We affirm the judgment of dismissal because a claim for omitted property should have been filed as an independent action in equity. However, because the court lacked authority to adjudicate the issue, the dismissal should have been without prejudice.

Mary Naunheim divorced Christopher Naunheim in 2001, and their separation agreement, incorporated into the judgment, distributed the parties' real property to the husband. The agreement also contained a provision for the equal distribution of any marital property omitted from the agreement. Neither party appealed the dissolution judgment.

In 2006, upon settlement of a class-action lawsuit, the parties received compensation from the federal government for a Fifth-Amendment taking of part of the real property. When the husband did not share the settlement proceeds with the wife, she filed a motion to divide undivided property in the dissolution action, asserting that the parties' separation agreement entitled her to one half of the proceeds. The husband filed a motion to dismiss, contending that the wife failed to state a claim and that the dissolution court lacked jurisdiction. The dissolution court denied the wife's motion to divide, granted the husband's motion to dismiss, and dismissed the wife's motion with prejudice.

This judgment is difficult to construe because the dissolution court appears to both deny the wife's motion on the merits and to dismiss the motion for lack of jurisdiction.1 In any event, we conclude that the court lacked authority to divide any property omitted from the dissolution judgment, and therefore the court properly dismissed the wife's motion. However, such dismissal should have been without prejudice.

Section 452.360.2 RSMo. (2000) provides: "The court's judgment of dissolution of marriage or legal separation as it affects distribution of marital property shall be a final judgment not...

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