Potter v. Potter, WD

• Decision Date: 25 August 1981
• Docket Number: No. WD,WD
• Citation: Potter v. Potter, 621 S.W.2d 123 (Mo. App. 1981)
• Parties: Virginia L. POTTER, Appellant, v. Thomas H. POTTER, Respondent. 31804.
• Court: Missouri Court of Appeals

Page 123

621 S.W.2d 123

Virginia L. POTTER, Appellant, v. Thomas H. POTTER, Respondent.

No. WD 31804.

Missouri Court of Appeals, Western District.

Aug. 25, 1981.

Lori J. Levine, Jefferson City, for appellant; Carson, Monaco, Coil, Riley & McMillin, Jefferson City, of counsel.

Clarence W. Hawk, California, for respondent.

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

PRITCHARD, Presiding Judge.

Appellant first says that the trial court erred in approving an oral stipulation read into the record concerning the division of the marital property, and incorporated into the judgment because the division was required to be in writing by § 452.325 (RSMo 1978).

In the proceedings below, appellant testified: She and respondent were married October 11, 1952, and after attempts at reconciliation were finally separated in the latter part of 1979. No children were born of the marriage. Certain negotiations were made on the morning of trial looking toward a distribution of the marital property, and an agreement was reached with respect to the distribution. Appellant was to have title to a duplex in the subdivision of Temple Terrace in Moniteau County, Missouri, and respondent was to assume and discharge an obligation for its roof repair; she was to receive all the furniture and furnishings of a residence occupied by the parties at 808 Proctor Drive, California, Missouri, with the exceptions of personal property in the house which were to go to respondent; $1,412.00 Series E Bonds were to go to appellant, and a $2,900.00 certificate of deposit with the City National Savings and Loan Company (this CD was listed in the decree at a value of $2,000.00); the residence located at 808 Proctor was to be set over to respondent, along with a Mercury automobile and four shares of the capital stock of the People's Bank of Jamestown, Missouri. Each party was to pay one-half of the court costs and their individual attorney fees, and there was to be no monthly maintenance awarded to appellant, which she understood. The property settlement outlined in court, under all the circumstances, was in appellant's opinion, fair and equitable, and she asked the court to approve it. On cross-examination, appellant testified further in this respect: "Q Do you feel that this separation agreement and the distribution of this property is fair to both you and to him? A No, sir, but I will agree. THE COURT: A Well, let me explain this to you I am not sure that I will agree. So you are going to have to convince this Court that this is fair in order for this to be approved. I suggest that you give it some strong consideration. MRS. POTTER: Well Q (By Mr. Hawk) In other words, Mrs. Potter, the Court is telling you, before the Court will approve any separation agreement, the parties themselves have to be convinced that it is fair and thereafter to ask the Court for a settlement. MRS. POTTER: I want it over with, sir. * * * Q (By Mr. Hawk) I am asking you are you asking this Court today to approve the separation agreement that you and your friends and your attorney with his advice and counsel, have agreed and entered into with your husband? Are you asking the Court to approve that agreement in all respects? A Yes, sir, I am asking him to. Q And taking everything into consideration, that you feel that it is fair and equitable? A Well, yes yes, sir; yes, sir. Q Do you want additional time to think about it? A No, I have been through too much. Q You are without hesitation? A Yes, sir. Q Or equivocation, asking the Court to approve the property and separation agreement? A Yes, sir." The court then stated that it had before it schedules of marital property which have been filed, and appellant acknowledged that she had an opportunity to review the one filed on her behalf, and that she had provided her attorney the information for preparing it. She believed the values set forth in that schedule to be a reasonable estimate, and that the agreement disposed of all the property accumulated by the parties during the marriage. Appellant's property schedule as filed showed these items: Residence $50,000.00 Duplex, $50,000.00; Furniture & Furnishings, $3,000.00; 1976 Mercury, $2,500.00; 19 Series "E"...