Simpson v. Strong

• Decision Date: 14 August 2007
• Docket Number: No. 27251.,No. 27235.,27235.,27251.
• Parties: Hilda Loretta SIMPSON and Darrell Eugene Carter as Co-Personal Representatives of the Estate of Mamie Elizabeth Strong, Dec'd, Appellants-Respondents, v. Carl F. STRONG, Respondent-Cross-Appellant.
• Court: Missouri Court of Appeals

234 S.W.3d 567

Hilda Loretta SIMPSON and Darrell Eugene Carter as Co-Personal Representatives of the Estate of Mamie Elizabeth Strong, Dec'd, Appellants-Respondents, v. Carl F. STRONG, Respondent-Cross-Appellant.

No. 27235.

No. 27251.

Missouri Court of Appeals, Southern District, Division Two.

August 14, 2007.

Motion for Rehearing or Transfer to Supreme Court Denied September 4, 2007.

Application for Transfer Denied October 30, 2007.

Randy John Reichard, Springfield, MO, for Appellants/Respondents.

James M. Kelly, Republic, MO, for Respondent/Cross-Appellant.

JEFFREY W. BATES, Chief Judge.

These appeals arise out of a dissolution action filed by Mamie Strong (Wife) against Carl Strong (Husband). After the court entered a judgment of legal separation, Wife died. Wife's children, Hilda Loretta Simpson (Simpson) and Darrell Eugene Carter (Carter), were substituted as parties-plaintiff in their capacities as the co-personal representatives of the decedent's estate for Wife. We will collectively refer to Simpson and Carter as "Representatives." Husband initially appealed from the judgment, and a cross-appeal was filed by Representatives. Pursuant to Rule 84.04(j), they were treated as the appellants because Wife was the plaintiff below.¹ On appeal, Representatives claim the trial court erred by: (1) granting Husband leave to amend his answer only two weeks before trial to deny that the marriage was irretrievably broken; and (2) finding that the parties' marriage was not irretrievably broken. Husband contends the trial court erred by: (1) granting a legal separation, which was not requested by either party; (2) failing to dismiss Wife's petition after finding the marriage was not irretrievably broken; and (3) denying Husband's motion to stay the proceedings pending determination of Wife's mental capacity in a guardianship or conservatorship proceeding. Finding no error as posited by either Representatives or Husband, we affirm.

I. Standard of Review

In this court-tried case, our review is governed by Rule 84.13(d). Hall v. Hall, 53 S.W.3d 214, 217 (Mo.App.2001). The judgment will be affirmed unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence or the judgment erroneously declares or applies the law. Murphy v Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Marriage of Reese, 155 S.W.3d 862, 869 (Mo.App.2005). On appeal, "[w]e defer to the trial court's determination of witness credibility and recognize that the court is free to accept or reject all, part, or none of the testimony presented." Christian Health Care of Springfield West Park, Inc. v. Little, 145 S.W.3d 44, 48 (Mo.App.2004). We view the evidence and all permissible inferences from that evidence in the light most favorable to the judgment and ignore all contrary evidence. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991); In re Marriage of Denton, 169 S.W.3d 604, 606 (Mo.App.2005).

II. Factual and Procedural Background

Husband and Wife were married on December 28, 1954 in Pottawattamie County, Iowa. Simpson and Carter were Wife's two children from a prior marriage. No children were born of the marriage between Husband and Wife. In December 2003, they were living in Republic, Missouri. After Wife fell and broke her shoulder, Husband placed Wife in the Christian Health Care Center (CHCC) in Republic, Missouri, while she recovered. Husband continued to live in the marital home. In early March 2004, Husband and Wife separated after nearly fifty years of marriage. Wife moved from CHCC into Simpson's home in Gainesville, Missouri.

On March 10, 2004, Wife filed a petition for dissolution of marriage in the Circuit Court of Greene County, Missouri. In Wife's petition, she alleged there was no reasonable likelihood that the marriage between the parties could be preserved, and therefore, their marriage was irretrievably broken. In May 2004, Husband filed his answer to the petition. His answer admitted the marriage was irretrievably broken, and Husband asked the court to dissolve the marriage. In September 2004, Husband was granted leave to file a cross-petition for dissolution of marriage. The cross-petition also alleged that the marriage was irretrievably broken and asked the court to dissolve the marriage. That same month, the case was set to commence trial on March 30, 2005.

In October 2004, Husband filed a motion to compel Wife to submit to a mental examination to determine her competency. The court sustained the motion. Thereafter, Wife submitted to two examinations.

On December 21, 2004, Wife was sent by her attorney to be examined by Steven T. Akeson, Psy.D. (Akeson). During Wife's interview with Akeson, she reported a long, unhappy marriage and clearly wanted a divorce. When Akeson asked why, Wife said "I can't stand [Husband]." Based upon the results of various psychological tests, Akeson opined that Wife had significant problems with her memory, but she had marginal judgment skills. While she was not able to live independently, "[t]his does not necessarily exclude her from exercising specific competencies that only require certain skills. In this situation [Wife] maintains marginal judgment skills and if that was the only impairment she would be competent to proceed in civil cases with appropriate legal counsel." Akeson did caution, however, that Wife's memory impairment made her susceptible to believing things that were not true and could prevent her from accurately recalling the entire history of her marriage. Akeson also expressed one additional concern:

[T]his divorce appears to come on the heels of her being placed in a nursing facility by her husband and then being removed from the facility by her daughter. This series of events may be viewed by [Wife] as [Husband] abandoning her and [Simpson] rescuing her. If this is how she sees it then this may distort how she remembers her marriage.

On February 18, 2005, Wife was sent by Husband's attorney to be examined by Michael Whetstone, Ph.D., A.B.P.P. (Whetstone). Whetstone also interviewed Wife and gave her various psychological tests. According to Whetstone, Wife believed that her marriage had long been unsatisfactory and that she wanted a divorce. Whetstone noted that, "I believe her decision to seek divorce is her own and should be respected as such." However, Wife demonstrated notable and significant deficits in memory, learning, recall and judgment that were consistent with moderate dementia. Whetstone opined that Wife would benefit from having a guardian and a conservator.

On March 7, 2005, Husband moved to stay the proceedings pending the appointment of a guardian or conservator for Wife. Two days later, the court conducted a hearing on that issue and denied the request for a stay.

On March 11, 2005, Husband dismissed his cross-petition for dissolution without prejudice and requested leave to file an amended answer. The legal file contains no written response to the motion by Wife. On March 17, 2005, the court held a hearing on Husband's motion, but no record of that hearing exists. The court noted in a docket entry that the motion to amend was "sustained over objection of" Wife. The legal file contains no information concerning the nature of Wife's objection. Husband's verified amended answer denied that the marriage was irretrievably broken and asked the court to dismiss Wife's petition.

On March 29, 2005, Husband filed a motion for continuance, and Wife filed a motion to appoint Carter as her next friend because of her physical infirmities. The court held a hearing on the motions that same day. The request for a continuance was denied. The motion to appoint Carter as Wife's next friend was sustained.

Trial commenced on March 30, 2005. Before evidence was adduced, the trial court granted Husband leave to further amend his prayer for relief to request that the court "continue this matter for further hearing not less than 30 days nor more than 6 months, and thereafter enter that alternative relief authorized by Section 452.320.2(2)."²

At trial, the written evaluations by Akeson and Whetstone were admitted into evidence as Joint Exhibit 1. The court also heard testimony from Wife, Heather Allen, Ginger Ulesich and Husband. Viewed in a light most favorable to the judgment, their testimony is summarized below.

Wife

Wife believed she was 84 years old, but she did not remember what year she was born or what year the trial was occurring. She could not recall what year she married Husband. In Wife's initial petition and in her deposition taken one week before trial, Wife mistakenly stated that she and Husband were married in Kansas because Wife sometimes got that state confused with Iowa. She wanted a divorce from Husband because he was "not good" to her. As an example of such conduct, Wife said Husband wouldn't go out and get her a cheeseburger when she wanted one. Wife could not recall when that occurred. Wife said her sister, Beulah, brought her food. Wife could not recall where Beulah lived, but said "I don't think it matters." In point of fact, Beulah had been deceased for about 30 years. Wife also said she was subjected to "cruel treatment" because Husband never did anything Wife asked. As an example, Wife said Husband would not take her to the grocery store when she wanted to go. Wife thought she lived in Republic, Missouri. Actually, at the time of trial, Wife resided with Simpson in Gainesville. Wife said that, before she moved into her daughter's home, she had lived in Kansas City, Missouri. She thought she had lived in Republic with Husband "about a week or so." She recalled telling people that she was mad at Husband because he had put her in a nursing home, which she described as "kind of a low blow." When asked to provide any other reason why she wanted a divorce, the following exchange took place:

Q. Other than what you've told us here today, is there any other reason why you don't want to be...