Reed v. Reed, 35614

Decision Date26 November 1974
Docket NumberNo. 35614,35614
Citation516 S.W.2d 568
PartiesViola REED, Plaintiff-Respondent, v. Lester REED, Defendant-Appellant. . Louis District, Division Three
CourtMissouri Court of Appeals

Timothy F. Ruddy, Cape Girardeau, for defendant-appellant.

R. P. Smith, Cape Girardeau, for plaintiff-respondent.

GUNN, Judge.

Defendant-appellant appeals from a partition suit judgment ordering distribution to plaintiff-respondent of all the proceeds from the sale of certain real estate and declaring that defendant was without title or interest in the real estate. We find that defendant has an interest in the real estate and reverse the judgment in part.

This action was commenced on August 24, 1972 and arises out of plaintiff's suit for divorce against defendant. Plaintiff's petition was in two counts. The first count was for divorce and sought alimony in gross and attorney's fees. Plaintiff alleged that on February 10, 1956, plaintiff and defendant were lawfully married. Alleged grounds for divorce were: that defendant's California divorce from another woman in a prior marriage was interlocutory at the time of plaintiff's marriage to defendant and did not become final until six months after their marriage; that defendant was an adulterer, a vagrant, an habitual drunkard and had offered numerous specified indignities so as to render plaintiff's condition as defendant's wife intolerable. Each of the foregoing grounds is cause for divorce under § 452.010, RSMo 1969, V.A.M.S., which was in effect and applicable at the time the divorce proceedings were filed. On count I, the trial court found plaintiff to be the injured and innocent party and ordered and decreed that the bonds of matrimony between plaintiff and defendant be dissolved but further found that there was not sufficient evidence to support plaintiff's claim for alimony or attorney's fees. Therefore, plaintiff's claim for alimony and attorney's fees was denied. No appeal was taken from the divorce decree and judgment under count I, and the decree of divorce from matrimonial bonds stands.

Count II of plaintiff's petition, on which this appeal lies, was for the partition and sale of certain real estate held by plaintiff and defendant as tenants by the entireties. 1 The averments of plaintiff's count II were: that plaintiff and defendant were seized as tenants by the entireties of approximately 17 acres of land in Cape Girardeau County; that in the event a decree of divorce would be entered, plaintiff and defendant would be seized of the property as tenants in common; that plaintiff had contributed all the funds for the purchase of the real estate. Plaintiff therefore prayed for partition of the land and for a finding that plaintiff was entitled to all of the land or, in the alternative, that if a sale of the land were ordered, that the proceeds of sale be divided according to the respective interests of the parties. Defendant in his answer admitted that the property was held by the entireties but denied that plaintiff had contributed the full purchase price. Defendant also counterclaimed for a one-half share of the land. At trial, plaintiff gave testimony concerning count I--the divorce action. There was absolutely no reference to or evidence presented by her concerning count II--the partition suit--except to acknowledge that she and defendant owned the 17 acres 'jointly.' There was nothing presented as to the cost of the land or plaintiff's contribution toward its purchase. Defendant's answers to interrogatories propounded by plaintiff were placed in evidence and made reference that defendant had contributed $2,300 to the purchase of the land, but, again, there was no reference to any acquisition cost.

With regard to count II, after ordering partition sale, the trial court, by supplemental order, judgment and decree dated August 3, 1973, found that defendant had no title or interest in the real estate and ruled against his counterclaim. The court further ordered that upon the sale of the real estate, the proceeds were to be distributed to plaintiff. On appeal, defendant argues that the real estate was held by plaintiff and defendant as tenants in common, and that he is entitled to one-half the proceeds from the partition sale.

Defendant's position with regard to the distribution of property is correct. '(U)pon the entry of the decree of divorce they each became the owner of an undivided one-half interest therein as tenants in common and either was entitled to partition the same.' Allan v. Allan, 364 S.W.2d 578, 582 (Mo.1963). Albeit there may be agreement between...

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8 cases
  • Marriage of Powers, In re
    • United States
    • Court of Appeal of Missouri (US)
    • September 16, 1975
    ...of the three items. We observe that it is not necessary that there be parity in the division of marital property. Reed v. Reed, 516 S.W.2d 568, 570-571 (Mo.App.1974); Symposium on Dissolution of Marriage: Property Provisions, Fowler and Krauskopf, 29 Mo.Bar Journal 508 (1973). This is parti......
  • Marriage of Schulte, In re
    • United States
    • Court of Appeal of Missouri (US)
    • January 11, 1977
    ...Conrad v. Bowers, 533 S.W.2d 614, 620(7) (Mo.App.1975); In re Marriage of Powers, supra n.5, 527 S.W.2d at 957(15); Reed v. Reed, 516 S.W.2d 568, 570(5) (Mo.App.1974).7 See, e.g., Naeger v. Naeger, 542 S.W.2d 344, 347(6) (Mo.App.1976); Murray v. Murray, supra, 538 S.W.2d at 588(4); In re Ma......
  • Conrad v. Bowers
    • United States
    • Court of Appeal of Missouri (US)
    • December 16, 1975
    ...the marriage.' It is not necessary, however, that there be an equal division. Powers v. Powers, supra, at p. 957; Reed v. Reed, 516 S.W.2d 568, 570--571 (Mo.App.1974); Fowler and Krauskopk, Property Provisions, 29 J. of Mo.Bar, 508, 511--512 Based upon the statute and what we believe to be ......
  • Stamme v. Stamme
    • United States
    • Court of Appeal of Missouri (US)
    • September 25, 1979
    ...S.W.2d 587 (Mo.App.1976). We add that the trial court is not required to make an equal division of the marital property, Reed v. Reed, 516 S.W.2d 568 (Mo.App.1974); Smith v. Smith, 552 S.W.2d 321 (Mo.App.1977), but only a just division. McCall v. McCall, 574 S.W.2d 496 The trial court did n......
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