State, ex rel. Rope v. Borron, s. WD

• Citation: 762 S.W.2d 427
• Decision Date: 11 October 1988
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, ex rel. Herbert M. ROPE, Personal Representative, et al., Relators, v. Honorable John A. BORRON, Jr., Judge, Probate Division Circuit Court of Jackson County, Missouri, Respondent. 40800, WD 40920.
• Court: Court of Appeal of Missouri (US)

Page 427

762 S.W.2d 427

STATE of Missouri, ex rel. Herbert M. ROPE, Personal Representative, et al., Relators, v. Honorable John A. BORRON, Jr., Judge, Probate Division

Circuit Court of Jackson County, Missouri, Respondent.

Nos. WD 40800, WD 40920.

Missouri Court of Appeals,

Western District.

Oct. 11, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 27, 1988.

Herbert M. Rope, Kansas City, pro se.

William C. Partin, Kansas City, for respondent.

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

TURNAGE, Presiding Judge.

Herbert M. Rope, Personal Representative of the Estate of Andrew Reed and the children of Andrew filed a petition for a writ of prohibition against the Honorable John A. Borron, Jr., Judge of the Probate Division of the Circuit Court of Jackson County. The petition seeks to prohibit the judge from holding a jury trial on a petition to discover assets prior to determining an equitable defense filed by Ida Reed, the widow of Andrew. A preliminary order in prohibition was issued which prohibited the judge from holding a jury trial. Thereafter, Ida filed an amended petition for discovery of assets in which she sought punitive as well as actual damages. A second petition in prohibition was filed seeking to prohibit the judge from proceeding on the amended petition because there is no right to recover punitive damages in a discovery of assets proceeding. The petition further sought to prohibit the judge from requiring the children of Andrew to produce their tax returns.

An amended preliminary order was entered after the two petitions had been consolidated in this court in which the judge was prohibited from taking any further action with reference to the estate of Andrew. The preliminary order is now made absolute in part.

Andrew Reed and Ida Hankin decided to marry. Both had been married previously and both had children by such marriages. Two days before the marriage in May of 1960, Ida and Andrew entered into an agreement in order to settle all matters of property rights between them in the event of their inability to live together or in the event of the death of either. In the agreement Andrew agreed to provide Ida with a suitable home and further agreed to make a will which would give Ida the right to live in such home for the rest of her life in the event Andrew died while they were still married. The agreement further provided that each waived all rights in the property of the other including all marital and statutory rights of a surviving spouse.

The parties were married but differences arose and Andrew filed an action seeking a dissolution of the marriage. Andrew died in February of 1986 without the marriage having been dissolved.

Herbert Rope was appointed the personal representative of the estate of Andrew. Ida filed a petition to discover assets, a conditional claim against the estate, ¹ and applications for homestead allowance, exempt property and family allowances. Ida also filed an election to take against his will.

In response to the petition to discover assets Rope filed an answer which pleaded the agreement as a defense. Ida filed a reply to the answer alleging the agreement was invalid and unenforceable on several grounds, including the failure of Andrew to make full disclosure of the nature and extent of his property at the time of the agreement. The court designated the discovery of assets proceeding as adversary and pursuant to § 472.141.1(2), RSMo 1986 ordered that Civil Rule 55 would apply in its entirety.

The court thereafter entered a pretrial order which considered the question of whether or not the discovery of assets proceeding together with the equitable defense raised in the reply should be tried to a jury. The court took the view that Ida was entitled to a jury trial on the discovery of assets proceeding and that to try the question of the validity of the agreement to the court as an equitable matter would deny Ida her right to a jury trial. The court ordered the discovery of assets and conditional claim consolidated and ordered a jury trial on both. The court also ordered the question of the validity of the agreement raised in the reply to be tried to the jury in the same trial. Thereafter, the personal representative sought prohibition in this court as outlined above.

The first question presented is whether or not the issue of the validity of the agreement should be tried to a jury. In Johns v. McNabb, 247 S.W.2d 640, 641 (Mo.1952), the court held that an action to cancel an agreement a wife made with her husband to relinquish all of her interest in their real estate and to cancel a deed executed pursuant to such agreement was essentially one in equity. In McQuate v. White, 389 S.W.2d 206, 210 (Mo.1965), the court stated that a suit by a widow to have a postnuptial agreement declared void was "[b]y its very nature, in equity."

Ida denies that she has attacked the validity of the agreement by the filing of the petition to discover assets. Ida obviously overlooks that she filed a reply to the answer filed in that action in which she alleged the invalidity of the agreement. Thus, the affirmative defense asserted by Ida as to the invalidity of the agreement brings this case within the holding in Johns and McQuate. Under those cases an action to set aside a postnuptial agreement is an action in equity. By the same token an attempt to set aside an antenuptial agreement is an action in equity.

Ida was required to file a reply under Rule 55.01 and 55.08. Those rules require an affirmative avoidance or defense to any matter alleged in a preceding pleading to be pleaded. Thus, when the personal representative filed an answer setting up the agreement, Ida was required to file a pleading setting up any affirmative defense she had to the agreement. Ida filed such a pleading and alleged the invalidity of the agreement. In Burnett v. Johnson, 349 S.W.2d 19, 22 (Mo.1961), the court quoted from an earlier case as follows:

When the answer is filed showing an equitable defense and asking equitable relief, the court merely postpones the trial of the issues tendered by the petition until those tendered by the answer are tried; and, if the equitable defense is sustained, and if it covers the whole case, a final judgment is rendered for the defendant, but if the equitable defense is not sustained, the plaintiff's cause of action stands for trial as at law.

The court further stated that upon the defendant raising equitable defenses the trial court transferred the case to the equity docket and the plaintiffs were not then entitled to a jury to hear the claim asserted in their petition. The court noted that the trial court properly heard and disposed of the equitable defense. Id. 23-24.

Under Burnett it is clear that when an equitable defense is presented to a claim triable by a jury that a separate trial shall be conducted by the court to determine the equitable defense. A jury trial on the underlying cause is not available at that point and does not become available unless the equitable defense fails.

In this case, the reply filed by Ida raised the equitable defense that the agreement was invalid and unenforceable. The court should have ordered a separate trial to the court as a case in equity to determine the validity of the agreement. All of the claims made by Ida depend upon the question of the validity of the agreement. All of the claims except the conditional claim would be decided if the agreement was held to be valid. In that event, only the conditional claim would require a jury trial. On the other hand, if the agreement was found to be void, then Ida would be entitled to a jury trial on her petition to discover assets and would be permitted to pursue her other remedies except for the conditional claim.

With the assertion of the equitable defense of invalidity of the agreement, it stands to reason that this pivotal question should be decided first. Being an equitable matter, it is not subject to a jury trial. The trial court was concerned that by denying Ida a jury trial on her defense of the invalidity of the agreement, the court would deny her a jury trial on her petition to discover assets. In State ex rel. Willman v. Sloan, 574 S.W.2d 421, 422[1, 2] (Mo. banc 1978), the court held there is no right to trial by jury in a case in equity even though the Missouri constitution provides that the right of trial by jury shall remain inviolate. Thus, requiring a court...