Rojas v. Rojas

• Decision Date: 04 February 1980
• Docket Number: No. KCD,KCD
• Citation: Rojas v. Rojas, 595 S.W.2d 729 (Mo. App. 1980)
• Parties: Peter ROJAS, Petitioner-Respondent, v. Rita ROJAS, Respondent-Appellant. 30285.
• Court: Missouri Court of Appeals

Page 729

595 S.W.2d 729

Peter ROJAS, Petitioner-Respondent, v.Rita ROJAS, Respondent-Appellant.

No. KCD 30285.

Missouri Court of Appeals, Western District.

Feb. 4, 1980.

Motion for Rehearing and/or Transfer Denied March 3, 1980.

Ronald R. Holliger, Laura A. Cochet, Kansas City, for respondent-appellant.

Joseph H. Moore, Hentzen, Moore & Willy, Kansas City, for petitioner-respondent.

Before SHANGLER, P. J., and SWOFFORD and CLARK, JJ.

SWOFFORD, Judge.

This is an appeal from a judgment converting a former degree of legal separation of the parties to a decree of final dissolution upon motion by the husband (petitioner below and respondent here).The wife (respondent below and appellant here) alleges three points upon which she seeks this Court's mandate reversing the decree of conversion, which points may be thus summarized: 1) that § 452.360(3) RSMo 1978, providing for the conversion of a decree of legal separation to a decree of dissolution is unconstitutional under the facts in this case in that its application deprives her of property without due process of law; 2) the court abused its discretion in entering the decree of conversion because there was no substantial evidence to support such judgment; and 3) that § 452.360(3) RSMo 1978 fails to state any standards for the conversion and thereby unlawfully delegated legislative responsibility to the judiciary.

The transcript before this Court is, to say the least, meager and unsatisfactory.The testimony on the original hearing for dissolution and the subsequent hearing on the motion for conversion, combined, total 25 pages.Neither did the transcript include any of the pleadings of the parties which are of vital significance in this appeal, as will be hereafter demonstrated.The omission of these pleadings in this case placed the additional burden upon this Court of directing that the original file from the Circuit Court be sent to this Court for inspection in accordance with Rule 81.12(c).This was done in recognition of the obligations of this Court on this appeal to be fully informed of the facts as a preliminary to decision and in no sense condones the omission by counsel to furnish a complete transcript (a burden resting by law upon them) nor is to serve as a precedent in future appeals.

However, from the pleadings, the record before this Court, and facts conceded in the briefs, the following is gleaned:

The parties were married in 1950.They were separated in 1975, and in June of 1976 the husband filed his petition for dissolution in which he alleged:

"5.There is no reasonable likelihood that the marriage of the parties can be preserved, and therefore the marriage is irretrievably broken."

To the husband's petition the wife filed, on June 18, 1976, her answer and "Cross-Petition for Dissolution" duly verified under oath.In her answer she admitted the allegations of paragraph 5 of the petition, above quoted.In her cross-petitionshe alleged in paragraph 5 thereof the exact allegation above quoted and prayed for a decree of dissolution.On March 23, 1977, she filed, by leave of court, her First Amended Answer and Cross-Petition(unverified) in which she again incorporated the language above quoted, but amended the prayer of her Cross-Petition to allege in pertinent part:

"WHEREFORE, Respondent prays that the marriage of Petitioner and Respondent be dissolved ; that the court award a reasonable amount for her support and maintenance; that the court enter a Decree of Legal Separation ; * * *"(Emphasis supplied)

In his answer to the amended cross-petition, the respondent here admitted the allegation that the marriage was irretrievably broken (as he had also alleged in his petition for dissolution) but placed in issue only the allegations that the appellant here was in need of support and maintenance, and that she had need of the family residence in which to reside.

Thus, when the first hearing upon this matter was held, September 21, 1977, both parties had alleged under their oaths in the record proper and as judicial admissions that there was no reasonable likelihood that the marriage could be preserved, and therefore was irretrievably broken, although, as above noted, the appellant here in her amended cross-petition had prayed for both a decree of dissolution and legal separation.At the hearing, aside from the respondent-husband's statement that the marriage was, in fact, irretrievably broken, and the appellant-wife's oral request that a decree of legal separation be entered, no details of the facts or reasons for this marital status were given by either party.

Both parties testified in vague terms as to an oral property settlement which had been reached between them.The trial court at the conclusion of this hearing directed the parties to reduce this agreement to written form and took the matter under advisement.On October 27, 1977, the trial court entered a decree in which it found that the marriage was irretrievably broken; approved the terms of the (then written) separation agreement as "not unconscionable" and set the same out in full in the decree; and, ordered and adjudged that the parties were legally separated.

Neither party filed any motion to change or modify this judgment of legal separation or any of its terms, nor took an appeal therefrom.

On March 22, 1978, the husband filed his motion to convert the decree of legal separation of October 27, 1977 to a decree of dissolution under § 452.360(3) RSMo 1978.In this motion, he merely recited the previous dates and litigation occurrences and that more than 90 days had elapsed since the decree of legal separation, and prayed for the decree of conversion.The motion contained no allegation that the marriage remained irretrievably broken.The appellant-wife responded to this motion by way of suggestions, which also contained no allegation that the marriage was not irretrievably broken.

A hearing was had on this motion on May 18, 1978, before a division of the court below other than the one from which this appeal is had.The husband's testimony on direct examination was confined to the history of the litigation; that more than 90 days had elapsed from the date of the decree of legal separation, and the general statement that irreconcilable differences still existed between the parties and his continuing belief that the marriage was irretrievably broken.On cross-examination he stated that he was employed by the Santa Fe Railroad and that he had a group medical-dental plan with Travelers Insurance Company by reason of his employment; that his wife was insured under that plan under the terms of the settlement agreement and the decree of legal separation; that he"was aware" that his wife had requested the decree of legal separation so that she could continue to be covered under the medical insurance; that in addition, he was paying her $100.00 per month maintenance; and, that he was not aware that her Social Security disability payments had been terminated.

The appellant-wife testified at this hearing that she had been employed as a kindergarten teacher until 1975, although she had no teacher's degree; that she had sought to return to this work since the legal separation without success, for the reason that degrees were now required; that she had sought employment elsewhere, including Milgram's grocery, where she had been turned down because she could not pass the physical examination; that she had been on Social Security disability, which had been terminated; and, that she had no property ¹ or source of income other than the $100.00 per month maintenance paid to her by the respondent-husband.She testified about the poor state of her health; that she had undergone orthopedic surgery to her neck and back in 1975-1976; that thereafter, her doctor had stated she could do light work; and, that she had no training or skills other than teaching kindergarten for 20 years during her marriage (for which work she now was disqualified).During her 25 years of marriage, she raised three children, took care of the home, ironed, washed and managed the home.

She testified as to her signing of the separation agreement and that she read and understood it, including the provision covering the group health insurance.She stated that to replace that coverage with Blue Cross-Blue Shield, if she could qualify for such coverage, would cost $57.00 per month.

In response to questions asked her by the court, she stated that she and her husband were separated in May of 1975; that she wanted to reconcile and get back together with him "but""He doesn't want it"; that her efforts (unstated or further described) to accomplish a reconciliation have been unsuccessful.She further stated that "He's got someone else".

It is clear from the record of this hearing that the emphasis of both par...