Schulz v. Schulz, 42277

• Decision Date: 30 December 1980
• Docket Number: No. 42277,42277
• Parties: Nancy E. SCHULZ, Appellant, v. John H. SCHULZ, Respondent.
• Court: Missouri Court of Appeals

Page 380

612 S.W.2d 380

Nancy E. SCHULZ, Appellant, v. John H. SCHULZ, Respondent.

No. 42277.

Missouri Court of Appeals, Eastern District, Division Four.

Dec. 30, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Feb. 13, 1981.

Application to Transfer Denied April 6, 1981.

Mark Belz, Clayton, for appellant.

Richard B. Scherrer, St. Louis, for respondent.

SMITH, Judge.

Plaintiff appeals from the action of the trial court denying and dismissing her motions to set aside a default judgment and for distribution of marital property. On January 31, 1977, a decree of dissolution of the marriage of the parties was entered by the trial court. The action had originally been brought by plaintiff. Defendant counterclaimed for dissolution and prayed for custody of the children, that the family residence be awarded to him, and for "such other orders as may be just and proper." Following repeated refusals by plaintiff to make discovery, her pleadings were stricken. The decree granted the dissolution, placed custody of the children in defendant, awarded reasonable rights of visitation of the children to plaintiff, denied maintenance, and awarded the family residence and "the personal property, furniture and other effects located at that address" to defendant.

In his financial statements filed in the dissolution proceeding defendant declared savings in the amount of $12,050.00, three automobiles, corporate stock of a value of $11,400.00 (subject to an amount owed of $3,250.00), and pension fund, stock options, and bonus plan of an aggregate value of $10,101.00. In addition, defendant's answers to interrogatories reflected ownership of 400 shares of Great Atlantic and Pacific Company of some undisclosed value. ¹ The dissolution decree makes no reference to any of these assets. Plaintiff's motion for division of marital property, filed on Aug. 2, 1979, sought an order of the court "for a division of martial property in this cause and to set apart to the parties their property" and for reconsideration of the partial distribution of the marital property made in 1977. On appeal plaintiff premises no error upon the court's denial of her motion to set aside the default decree and that contention has been abandoned.

We have examined sua sponte the question of whether the order entered is appealable. We conclude it is. Sec. 512.020, RSMo 1978, provides for appeals from "any special order after final judgment in the cause." In Bussiere's Adm'r v. Sayman, 257 Mo. 303, 165 S.W. 796 (banc 1914) it was stated that an order denying a motion to vacate a judgment is appealable on the basis that:

"It needs no argument or discussion to demonstrate that since a defendant, when he fails to get favorable action on his motion to vacate a judgment by default, has reached the last ditch, then unless an appeal lies to him the judgment as to him is absolutely a "final judgment in the case." 165 S.W. l.c. 799.

The same is true here. The court's denial of plaintiff's motion for division is, as to the dissolution action, the last ditch. See, Wehrs v. Sullivan, 187 S.W. 825 (Mo. 1916); State v. Cave, 359 Mo. 72, 220 S.W.2d 45 (banc 1949); Quincy v. Quincy, 430 S.W.2d 638 (Mo.App.1968); Chenoweth v. Chenoweth, 575 S.W.2d 871 (Mo.App.1978).

Defendant has devoted virtually his entire brief to a discussion of plaintiff's conduct which led to the striking of her pleadings and subsequent default. We find such discussion of little value to the issues before us and need not repeat the course of plaintiff's conduct. Suffice it to say that conduct fully supported the court's action in striking her pleadings.

Sec. 452.330, RSMo 1978, provides that:

"In a proceeding for ... dissolution of the marriage ... the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors ...." (Emphasis supplied).

The statute imposes upon the court the obligation to determine the property of each spouse and to divide the marital property justly. In re Marriage of Schulz, 583 S.W.2d 735 (Mo.App.1979) (3-6). This obligation is not dependent upon whether the dissolution is contested, uncontested or by default. Until the court has set apart the property of each spouse and justly divided the marital property, it has not exhausted its jurisdiction. Nilges v. Nilges, 564 S.W.2d 262 (Mo.App.1978); Anspach v. Anspach, 557 S.W.2d 3 (Mo.App.1977); Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977); L. F. H. v. R. L. H., 543 S.W.2d 520 (Mo.App.1976).

In State ex rel McClintock v. Black, 608 S.W.2d 405 (Mo. banc 1980) the Court dealt with a similar but not identical issue. There relator-wife sought to vacate the dissolution decree on the basis that the decree was not final because all of the material property had not been distributed. As we interpret the Supreme Court opinion in McClintock, the decree becomes final upon res judicata grounds after the time for appeal has passed, as it has in the case before us. This, we believe, means that as to the property distributed by the decree the decree is final and not subject to modification. We do not believe that opinion holds that the court lacks jurisdiction to distribute in a subsequent or ancillary proceeding the remaining undistributed property. It is difficult to conclude that res judicata ² applies to property belonging to the marriage which has not been judicially acted upon. This is recognized in McClintock, in the last paragraph suggesting that equitable relief may be available as between the parties to rectify the court's failure to fully distribute the marital property.

While other methods of compelling the court to exhaust its jurisdiction may be available, a motion to compel division would appear to be an acceptable procedure. In re Marriage of Jamison, 592 S.W.2d 181 (Mo.App.1979). Plaintiff's motion for division of marital...