Searcy v. Searcy, WD

• Court: Missouri Court of Appeals
• Writing for the Court: Before SOMERVILLE, P.J., TURNAGE, C.J., and MANFORD; SOMERVILLE
• Citation: Searcy v. Searcy, 658 S.W.2d 931 (Mo. App. 1983)
• Decision Date: 27 September 1983
• Docket Number: No. WD,WD
• Parties: K.P. SEARCY, Plaintiff-Respondent, v. Ramona Jean SEARCY, Defendant-Appellant. 33784.

Page 931

658 S.W.2d 931

K.P. SEARCY, Plaintiff-Respondent, v. Ramona Jean SEARCY, Defendant-Appellant.

No. WD 33784.

Missouri Court of Appeals Western District.

Sept. 27, 1983.

Edward F. Ford III, Kansas City, for defendant-appellant.

Kenneth C. Hensley, Wilbur L. Pollard, Norton, Pollard & Norton, North Kansas City, for plaintiff-respondent.

Before SOMERVILLE, P.J., TURNAGE, C.J., and MANFORD, J.

SOMERVILLE, Presiding Judge.

In this appeal from a judgment entered in an action for dissolution of marriage, appellant (hereinafter wife), inter alia, asserts the trial court erred in declaring that a valid antenuptial agreement precluded the existence of any marital property subject to division.

There were no children born of the present marriage. The wife was gainfully employed before and during the marriage and makes no claim that the trial court erred in not awarding her any maintenance.

This was not the first marriage for either party. The wife had two children by a previous marriage. Although the husband had no children by his previous marriage, he felt a sense of obligation to provide for the needs of his mother and sister.

The antenuptial agreement in question was entered into on August 22, 1972, and the parties were married on August 25, 1972. The antenuptial agreement and the marriage both predated the effective date of the Dissolution Of Marriage Act. A full and complete disclosure of the items and values of property separately owned by the respective parties immediately prior to their forthcoming marriage was embodied in the antenuptial agreement. The wife's separate property, as disclosed therein, consisted of bank accounts totaling $8,450 and a 1971 Torino automobile and miscellaneous household furniture. The husband's separate property, as disclosed therein, consisted of a 50% interest in a real estate development business, various tracts of improved and unimproved real estate, notes secured by deeds of trust, checking and savings accounts, a car, boat and miscellaneous household goods, having a total net value of approximately $216,700.00.

Fairly paraphrased, the antenuptial agreement provided for retention, control and disposition by the respective parties of their separate property, and all increases or additions thereto, during and subsequent to the marriage, and for the release of all future claims and marital rights therein by each of the parties in the other's estate in the event of his or her death.

The antenuptial agreement neither made mention of nor reference to the disposition of property acquired during the course of the marriage in the event of divorce. Nevertheless, a careful perusal of the evidence in conjunction with the decree entered by the trial court finding no marital property leaves little doubt that both the trial court and the husband to some extent, as well as the wife perhaps, assumed sub silentio that any property acquired by either the husband or wife during the course of the marriage, irrespective of its source, was governed by the antenuptial agreement. The aforementioned, conjoined with an otherwise convoluted record, must be reckoned with in disposing of this appeal.

As a prelude to setting forth and disposing of the points relied on by the wife on appeal, the record, as perceived by this court after considerable difficulty, discloses certain additional facts which are pertinent at the threshold of appellate inquiry. During the course of the marriage the husband liquidated most of the property disclosed by him in the antenuptial agreement. The wife pursued essentially the same course with respect to her separately owned property. Although the record suggests that the husband exchanged funds received from liquidation of his separate property for other assets, it stops short of definitively showing that he did so, or, if he did so, the identity of such other assets. This evidentiary hiatus is attributable undoubtedly to the fact that he apparently assumed that proof of a valid antenuptial agreement, coupled with liquidation of the assets owned by him prior to the marriage, ipso facto supported a finding by the trial court that no marital property was generated by the marriage.

At this juncture, it is appropriate to focus attention on the points, four in number, relied on by the wife on appeal. The order of the points relied on are rearranged and restated, as doing so hopefully lends clarity and a better understanding of the issues tendered for disposition. Accordingly, the following points will be seriately addressed: (1) The trial court erred in holding that the antenuptial agreement was valid because it was contrary to public policy due to the advent of the Dissolution Of Marriage Act and was unfair due to the disparity in values between the property owned by the respective parties; (2) The trial court erred in finding that there was no marital property subject to division; (3) The trial court erred in failing to join the husband's sister as an "indispensable third party" because she claimed an interest in a certificate of deposit ($100,000.00) acquired with funds, in whole or in part, furnished by the husband; and (4) The trial court erred in assessing costs accrued below against the wife.

As a practical matter, the wife's attack on the validity of the antenuptial agreement on the grounds of public policy is contingent --- that is, the antenuptial agreement is invalid if subject to being construed as governing the disposition of property in contemplation of divorce or dissolution. As previously noted, the antenuptial agreement does not purport to extend to or cover the disposition of marital property on dissolution of marriage. Even if it did, the wife's attack on the antenuptial agreement on grounds of public policy per se is thoroughly rejected by Whitenton v. Whitenton, --- S.W.2d ---- (Mo.App.1983)...