Pike v. Pike, 62305

• Decision Date: 15 December 1980
• Docket Number: No. 62305,62305
• Citation: 609 S.W.2d 397
• Parties: Marjorie E. PIKE, by her Next Friend, Richard Schaller, Plaintiff-Respondent, v. Dorthea L. PIKE, Defendant-Appellant.
• Court: Missouri Supreme Court

Page 397

609 S.W.2d 397

Marjorie E. PIKE, by her Next Friend, Richard Schaller, Plaintiff-Respondent, v. Dorthea L. PIKE, Defendant-Appellant.

No. 62305.

Supreme Court of Missouri, En Banc.

Dec. 15, 1980.

Joseph Y. DeCuyper and Hsiang-Lin Lee, Kansas City, for defendant-appellant.

John H. Norton and William Harrison Norton, Kansas City, for plaintiff-respondent.

RENDLEN, Judge.

Judgment was entered for Marjorie Pike setting aside a deed by which she had conveyed her interest in the family farm to her husband and ordering partition of the land involved. Appealing, defendant asserts (1) the finding of plaintiff's (grantor's) mental incompetence on the date of the deed's execution is not supported by competent evidence, and (2) error in various evidentiary rulings. After opinion in the Court of Appeals, ¹ the cause was transferred here for determination as though on original appeal. Mo.Const., Art. V, § 10. A brief statement of facts will suffice at the outset, with detailed recitals of the proof provided in connection with our discussion of the allegations of error.

Four years after their marriage in 1946, Marjorie and Estell Pike acquired a 40 acre farm as tenants by the entirety. In 1965, concerned with her peculiar behavior patterns, plaintiff's aunt insisted she seek medical advice and during January of 1966 she was admitted for a three month stay in the psychiatric ward of Kansas City's Research Hospital. Diagnosed as a paranoid schizophrenic, plaintiff underwent electro shock treatments and her condition temporarily improved. The treatments were discontinued that September.

After her release from the hospital, plaintiff returned to her farm home where she remained until 1970. In January of that year she was served with "papers" in her husband's divorce proceeding. It was testified her mental state at that time was confused, but on February 28, 1970, without valid consideration, plaintiff executed a warranty deed conveying her interest in the 40 acre farm to Estell. He in the meantime, proceeding ex parte (plaintiff had defaulted), was granted his divorce on April 10. It is not surprising that he was also awarded custody of the children. On June 20, 1970, Estell married defendant, and subsequently conveyed the 40 acres to defendant and himself as husband and wife. Thereafter, Estell died survived by defendant.

At trial plaintiff alleged the deed of February 28, 1970, was void (1) for lack of consideration and (2) because at the time of its execution plaintiff was legally incompetent by reason of mental illness. Finding that plaintiff had "not been in an overall mentally clear state since 1966," and on February 28, 1970, was legally incompetent, and that "no real consideration was given for the execution of said deed," the court held the deed was of "no legal force or effect." We affirm.

Rule 55.33 provides "(w)hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues." When variance occurs without objection between pleading and proof, such variance, especially in court tried cases, shall be considered immaterial and the pleadings deemed amended to conform to the proof. See, Schroeder v. Prince Charles, Inc., 427 S.W.2d 414, 421 (Mo.1968). Here, though the proof supports the judgment declaring the deed invalid for reasons somewhat different than those propounded in the pleadings or the trial court's finding, it is clear the deed should be set aside because of undue influence exercised in its procurement. Rule 84.14 requires that an appellate court, in the absence of injustice, should finally dispose of the case. Accordingly, we affirm the trial court's judgment on the showing of undue influence and deem it unnecessary to remand for formal amendment of the pleadings. Evidence pertinent to the issue of undue influence now follows.

Defendant argues that a 1966 medical report admitted in evidence was too remote and of no probative value as to Marjorie's mental state in 1970. However, Edith Ballard, plaintiff's sister, testified that Marjorie's attitude changed after her hospitalization in 1966. She showed no concern for her appearance or for her children whom she permitted to stand on the furniture and on the oven door, and generally "tear up" the house. Edith stated that plaintiff demonstrated a similar lack of interest in money and her home and that her condition deteriorated between 1966 and 1977. At the time of the divorce Edith took plaintiff to an attorney, but ignoring Edith's advice, plaintiff refused to cooperate with counsel. When Edith took her from the farm after the divorce, plaintiff brought her clothes and $300, apparently the only things plaintiff received from the divorce. During the eight months plaintiff resided with Edith, plaintiff had no job, paid no rent, allowed her driver's license to expire and maintained no checking or savings account. Whenever Edith discussed working with plaintiff or when the family visited, plaintiff became nervous and left the room. Edith assigned plaintiff small tasks around the house, but she invariably wandered off abandoning them midway, and neither would she answer Edith's door or phone. Incessantly plaintiff expressed her desire to go "home" to the farm, and refused to acknowledge the divorce or her husband's remarriage. Although plaintiff occasionally could converse with Edith, the conversation usually consisted of plaintiff's "silly answers" in response to questions directed toward her.

Loretta Easley, a neighbor near the farm, testifying respecting plaintiff's behavior during 1966 through 1970, stated that plaintiff's answers were frequently inapposite to questions propounded to her. She testified plaintiff rarely left the house even to buy groceries, but frequently stood by the door for hours staring outside. Plaintiff's children spent many hours at Loretta's house, yet plaintiff never called to inquire about them and at one time it was necessary for Loretta to drive plaintiff's daughter to the doctor. She also testified that plaintiff condoned impudence from her son, Larry.

Edith Waisner, plaintiff's aunt, testified that in 1963 plaintiff frequently would go blank and when the condition worsened, Edith took plaintiff to a doctor, and thence to Research Hospital. From plaintiff's release from the hospital in 1966, until 1970, plaintiff when engaged in conversation rarely completed her sentences. She never compelled her children to attend school. Edith ceased visiting plaintiff in the fall of 1969 and although she and plaintiff had been very close, on Edith's last visit, plaintiff did not answer the door, but Edith saw a curtain move at the front window and plaintiff's son told her plaintiff was in the house.

Plaintiff's youngest son, John Pike, testified that when plaintiff returned from the hospital in 1966, he was seven years of age. From then until the divorce, plaintiff never looked after him. She condoned his truancies and ceased cooking meals for him. After the divorce, plaintiff left the house taking only the sewing machine. John stated plaintiff's condition deteriorated after the divorce and she attended neither the graduation exercises nor the marriage ceremonies of any of her children.

Virginia Jewell, also a former neighbor of plaintiff's near the farm, testified that she often visited plaintiff from 1967 until the divorce. During these visits plaintiff would stare vacantly and often leave Virginia talking. Virginia was visiting when plaintiff received the divorce summons and petition, on January 8, 1970. Plaintiff refused to believe the contents of the petition when Virginia read it to her, insisting it was a letter. When plaintiff's family arrived to pick her up at the farm following the divorce, plaintiff told Virginia she would return in a few days.

Richard Schaller, plaintiff's brother who provided plaintiff a home during 1972 and 1978, testified that when they picked up plaintiff in 1970 she would not believe she was divorced nor that she had to leave the farm. While living with Richard, plaintiff evidenced a short memory, repeatedly insisted her husband Estell was coming for her, refused to associate with people, could not thaw meat according to Richard's instructions, could not devote attention to television for any length of time, and had no routine sleeping habits. She made erroneous purchases when sent to the store and never completed small tasks assigned her. Her lack of concern for money was exemplified when on the one occasion they persuaded her to attend a social function, she failed to call out her winning at a Bingo game. Each time plaintiff moved out of Richard's house, she never informed him she was leaving.

Larry Pike, plaintiff's son, 19 at the time of the divorce, testified concerning her condition during 1966 through 1970, stating plaintiff slept frequently, cooked only when one of the children complained of being hungry, rarely conversed and often laughed inappropriately. During that period she did not attend her children's functions and never gave Larry a birthday present. Larry could not recall precisely her condition in February, 1970, but believed it remained constant from 1966 through 1970.

Plaintiff's sister-in-law, Pauline Schaller, testified she first met plaintiff after the divorce in 1970 and at that time Marjorie stated, "they told me that my husband divorced me." When Marjorie came to live with Pauline and Richard, she frequently left unfinished letters written to no one in particular lying about, never finished puzzles she started, and would not waken the Schaller children for school on mornings...