Smith v. Smith

Decision Date30 March 2021
Docket NumberNo. ED 108399,ED 108399
Citation627 S.W.3d 82
CourtMissouri Court of Appeals
Parties Vicki J. SMITH, Appellant, v. Dean A. SMITH, Respondent.

FOR APPELLANT: Robert N. Hamilton, Danielle Berra Gabor, 2016 S. Big Bend Blvd., St. Louis, MO 63117.

FOR RESPONDENT: Erika J. Wentzel, 820 South Main St., Ste. 200, St. Charles, MO 63301.

GUARDIAN AD LITEM: Elaine A. Pudlowski, 231 South Bemiston Ave., Ste. 1111, Clayton, MO 63105.


Vicki J. Smith ("Wife") appeals the trial court's August 26, 2019 judgment ("August 2019 judgment") entered in favor of Dean A. Smith ("Husband") on Husband's claim for equitable relief. The August 2019 judgment relieved Husband from his obligation under the partiesMay 2007 dissolution judgment to pay any monies owed on a Bank of America credit card in Husband's individual name; entered judgment in favor of Husband and against Wife in the total amount of $50,660.79; and ordered Wife to pay Husband $15,000.00 in attorney's fees. Because Husband's claim for equitable relief was barred by the doctrine of res judicata, we reverse the August 2019 judgment and remand to the trial court for dismissal of Husband's claim.1


This case involves whether, inter alia , Husband or Wife is obligated to pay monies owed on a Bank of America credit card in Husband's individual name. As explained below, two trial judges in the Circuit Court of Lincoln County made inconsistent rulings as to this issue; the Honorable Dan Dildine ("Judge Dildine") found Husband has an obligation to pay monies owed on the Bank of America credit card, whereas the Honorable Thomas J. Frawley ("Judge Frawley" or "the trial court") found Wife has an obligation to pay such monies owed.

The parties were married on July 31, 1982, and three children were born of the marriage. The parties then separated on or about February 1, 2005. On October 14, 2005, Wife filed a petition for dissolution of marriage. The case subsequently involved a lengthy procedural posture consisting of, (A) October 2005 to May 2007 dissolution proceedings before Judge Dildine; (B) proceedings on Husband's December 2009 motion to modify, motion for contempt, and petition for unjust enrichment before Judge Dildine; and (C) proceedings on Husband's August 2014 claim for equitable relief before Judge Frawley leading up to the instant appeal.

A. Relevant Portions of the October 2005 to May 2007 Dissolution Proceedings Before Judge Dildine
1. Initial Facts Regarding the Credit Card at Issue in this Appeal

During the parties’ marriage, Husband opened an MBNA credit card account in his individual name. On separate dates in 2005, Wife and Husband each filed a statement of property listing the credit card as having a $0 balance. Neither party amended his or her statement of property at any time during the dissolution proceedings.

At some point during the dissolution proceedings, the MBNA credit card account was taken over by Bank of America ("the Bank of America credit card"). Although the Bank of America credit card was in Husband's individual name only, Wife was authorized to write checks on the account. On January 1, 2007, the Bank of America credit card had a $0 balance. On January 25 and April 24, 2007, and without Husband's knowledge, Wife wrote four checks on the Bank of America credit card account totaling approximately $30,000.00.2

2. Judge Dildine's Orders and Husband's Failure to Comply with Such Orders and Discovery

On March 10, 2006, Judge Dildine entered a pendente lite ("PDL") order requiring Husband to pay Wife the sum of $771.00 per month beginning on April 10, 2006 for child support and the sum of $5,000.00 per month in temporary maintenance beginning April 10, 2006. Husband failed to comply with the PDL order. Accordingly, on June 13, 2006, Judge Dildine entered an order providing for an income withholding to be effective against Husband for "$5771.00 per month in child support/maintenance, and an additional $2885.50 per month for 2.43 months to defray arrearages." (emphasis omitted).

Judge Dildine also entered multiple orders against Husband for failing to comply with discovery during the pendency of the dissolution proceedings. On September 18, 2006, Judge Dildine entered an order granting Wife's motion to compel execution of a release for records. Then, on January 16, 2007, Judge Dildine entered an order granting Wife's motion to compel supplemental responses to five specific requests in Wife's first request for production of documents and ordering Husband to supplement such responses on or before February 10, 2007. Additionally, because Husband failed to comply with the discovery deadline in the January 16, 2007 order, Judge Dildine entered an order on February 20, 2007 granting Wife's motion for sanctions and motion to compel further discovery responses, which, inter alia , ordered Husband to pay Wife $500.00 in attorney's fees as a sanction.

3. The Parties’ Settlement Agreement and Dissolution Judgment

On March 2, 2007, and after several hours of negotiation with counsel and parties present, the parties reached a settlement agreement on the record. Among other things, the parties agreed Husband would be responsible for all credit cards and their balances in his individual name, and in return, his child support and maintenance arrearages would be eliminated. A marital settlement agreement ("Marital Settlement Agreement") reflected terms reached by the parties on the record in March 2007, and the parties’ signed the Marital Settlement Agreement on May 15, 2007.

Judge Dildine signed and entered the dissolution judgment on May 15, 2007, and the parties’ Marital Settlement Agreement was incorporated into the judgment. The Marital Settlement Agreement provided Wife would assume and pay all credit cards in her individual name and would pay her own attorney's fees and that Husband would assume and pay all credit cards in his individual name and pay his own attorney's fees. The Marital Settlement Agreement also provided, (1) Wife agreed Husband was current in his maintenance and child support obligations and absolved him of all arrearage and interest as of May 15, 2007; (2) each party released and discharged the other from any and all claims, demands, causes of action, whether in law or in equity, that they may have against the other; (3) the parties’ acknowledged there had been limited discovery undertaken with respect to the case and each party acknowledged and assumed any loss which may be occasioned due to the fact that complete discovery was not had by the parties; and (4) said acknowledgment further stated the attorneys had advised their clients of the risk that exists when complete discovery is not had and the clients thereby stated they knowingly and willingly assumed the risk and held each attorney harmless with respect to any cause of action. Finally, the Marital Settlement Agreement provided that commencing June 1, 2007, Husband would pay Wife $1,000.00 per month in maintenance and $3,000.00 per month in child support for the parties’ two unemancipated children.

B. Relevant Portions of the Proceedings on Husband's December 2009 Motion to Modify, Motion for Contempt, and Petition for Unjust Enrichment Before Judge Dildine

On December 22, 2009, Husband filed a motion to modify, motion for contempt, and petition for unjust enrichment ("Husband's 2009 Motion"). Husband's 2009 Motion requested, inter alia , the termination or modification of his obligation to pay maintenance; a modification of his obligation to pay child support; and relief on the approximately $30,000.00 Bank of America credit card debt resulting from Wife writing checks during the dissolution proceedings on the basis that Husband was unaware of the debt. With respect to the Bank of America credit card debt, Husband's 2009 Motion requested a court order requiring Wife to reimburse Husband for amounts he paid toward the Bank of America credit card and a claim for unjust enrichment. Husband also alleged he thought the Bank of America credit card was closed and he became aware of Wife's credit card use after the parties’ dissolution judgment was entered.

On August 2, 2010, Wife filed a Motion to Dismiss Husband's 2009 Motion ("Wife's 2010 Motion to Dismiss"). Wife asserted Husband's 2009 Motion should be dismissed because Husband had unclean hands in that Husband did not pay Wife maintenance and child support in accordance with the terms of the dissolution judgment and Husband's total arrears were over $30,000.00. Wife also claimed Husband's 2009 Motion should be dismissed because Husband released all potential claims, including tort claims, against Wife in the parties’ Marital Settlement Agreement, and because Husband agreed in the Marital Settlement Agreement to assume any loss due to his failure to do little, if any, discovery in the dissolution proceedings.

On September 21, 2010, Judge Dildine conducted a hearing on Wife's 2010 Motion to Dismiss. Evidence adduced at the hearing demonstrated Husband's total arrears for maintenance and child support were $38,634.82 (consisting of a total maintenance arrearage of $19,393.49 and a total child support arrearage of $19,241.33).

Husband testified at the evidentiary hearing that he learned there was a debt on the Bank of America credit card after the parties’ divorce in July 2007, and he changed the address on the credit card from Wife's address in Missouri to his address in Florida. Husband also testified he did not file a motion to set aside the dissolution judgment at the time he learned of the Bank of America credit card debt in July 2007. Husband claimed he did not file such a motion because he was on active duty in the military "based out of Tampa, Florida," and "had multiple deployments going to Iraq and Afghanistan"; however, the only specific evidence of Husband's overseas deployments was that he had an eleven-month deployment in 2005 and...

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2 cases
  • In re Hutchinson
    • United States
    • Iowa Supreme Court
    • May 20, 2022
    ...28 (1990) (determining concealment of a sum of money during property settlement negotiations was intrinsic fraud); Smith v. Smith , 627 S.W.3d 82, 94 (Mo. Ct. App. 2021) ("Wife allegedly concealing the Bank of America credit card debt from Husband in the dissolution action constituted intri......
  • State v. Burroughs
    • United States
    • Missouri Court of Appeals
    • March 30, 2021

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