Stein v. Stein, 56430

• Citation: 789 S.W.2d 87
• Decision Date: 20 March 1990
• Docket Number: No. 56430,56430
• Parties: Lynn Lorraine STEIN, Plaintiff-Appellant, v. Marshall STEIN, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 87

789 S.W.2d 87

Lynn Lorraine STEIN, Plaintiff-Appellant, v. Marshall STEIN, Defendant-Respondent.

No. 56430.

Missouri Court of Appeals Eastern District, Division Four.

March 20, 1990.

Motion for Rehearing and/or

Transfer to Supreme Court Denied

April 20, 1990.

Application to Transfer Denied June 19, 1990.

Paul H. Schramm, Schramm & Pines, St. Louis, for plaintiff-appellant.

Chester A. Love, Daniel P. Card II, Leigh Joy Carson, Love, Lacks & Paule, St. Louis, for defendant-respondent.

HAMILTON, Presiding Judge.

Appellant, Lynn Stein (hereinafter Wife), filed an action in equity against her former husband, Marshall Stein (hereinafter Husband). She sought to have the trial court divide and apportion previously unallocated property and to set aside the 1982 decree of dissolution of marriage, including the Property Settlement and Separation Agreement incorporated therein, on the grounds of fraud, misrepresentation, duress, and coercion. Although rejecting Wife's claim to set aside the decree on the latter grounds, the trial court did find that the dissolution decree failed to divide all the parties' marital and separate property. It therefore distributed that property. We affirm.

Husband and Wife married for the first time in 1955 and subsequently divorced in 1963. They married a second time on December 28, 1976.

On Friday evening, April 30, 1982, Wife told Husband she wanted a divorce. Husband agreed to it, although the parties differed as to whether Husband reacted to Wife's announcement calmly or became enraged. On Monday, May 3, 1982, Wife consulted an attorney, Paul Schramm (hereinafter Schramm), concerning dissolution of her second marriage to Husband. That evening she informed Husband that she had seen Schramm regarding a divorce.

Thereafter, Husband contacted the firm of Lewis & Rice concerning the divorce. He subsequently spoke by telephone with William McCalpin (hereinafter McCalpin), a partner at Lewis & Rice. During this conversation, Husband requested McCalpin to represent both him and Wife in the dissolution proceeding. McCalpin responded that he could not represent both so long as Schramm represented Wife. McCalpin had earlier represented Husband individually in business litigation against Husband's uncle.

Following his conversation with McCalpin, Husband spoke with Wife regarding her representation. By letter dated May 10, 1982, Wife informed Schramm that she had decided to drop divorce proceedings and she requested a bill from Schramm, which Husband later paid.

On June 30, 1982, the parties met with McCalpin. At that meeting, McCalpin presented the draft of a Separation Agreement and the draft of a Joint Petition for Dissolution of Marriage. During this meeting, the parties worked out a Separation Agreement, resolving an initial disagreement concerning maintenance for Wife. The final Separation Agreement was delivered to Wife for her signature on July 1, 1982, and to Husband for his signature on July 2, 1982.

In the Separation Agreement, both parties waived their rights to maintenance. ¹ They agreed to divide certain furnishings and personal property from their residences. Wife was to receive the parties' lake house, boats, and motors. Husband was to receive their St. Louis County residence and to assume responsibility for its mortgage. Husband agreed to pay Wife the sum of $50,000 as well as attorneys' fees and court costs for the dissolution.

On September 30, 1982, Husband and Wife each executed a property statement. These statements disclosed property that was neither divided nor set apart as separate property in the parties' Separation Agreement nor later, in the dissolution decree. Specifically, in his property statement, Husband listed pension and profit-sharing plans from Crown Foods, as well as Crown Foods stock, Union Electric stock, and "miscellaneous bonds." Wife listed a small pension and profit-sharing plan from Crown Foods, an automobile, and a condominium. McCalpin did not amend the Separation Agreement to reflect these items because he believed that the Separation Agreement reflected the agreement of the parties and that both parties knew the facts.

At the hearing on the dissolution, McCalpin asked Wife on four occasions whether she wanted separate representation. Each time she indicated satisfaction with McCalpin's services. Following this hearing, the dissolution court approved the Separation Agreement and, on November 10, 1982, dissolved the parties' second marriage.

The dissolution decree apportioned $150,000 in marital property to Husband and $187,000 in marital property to Wife. Each party also received certain furnishings and items of personal property that were not valued.

On March 17, 1986, Wife filed the instant action in equity against Husband, seeking, inter alia, to divide property not previously apportioned and to vacate and set aside the Decree and Separation Agreement by reason of fraud, misrepresentation, duress, and coercion.

Following a five-day trial, the trial court issued its findings of fact, conclusions of law, and judgment. It rejected Wife's claims of fraud, misrepresentation, duress, and coercion and declined to vacate either the dissolution decree or the Separation Agreement. Finding, however, that certain marital and separate property had not been allocated by the decree, the trial court divided it, distributing each asset to the party who had retained that asset on the date of the entry of the dissolution decree. Further facts will be referred to in the remainder of the opinion.

Wife appeals. She alleges the trial court erred (1) in rejecting her claim of fraud; (2) in rejecting her claim of mutual mistake of fact; (3) in valuing Husband's Crown Foods stock; (4) in rejecting her claim that Husband "sacrificed" some of the parties' marital earnings; (5) in valuing her condominium; (6) in valuing Husband's pension and profit-sharing plans; (7) in rejecting her claim that the distribution of marital assets was inequitable; (8) in rejecting her claims of bias on the part of the trial court; (9) in denying her request for attorneys' fees; and (10) in denying her request for costs.

This Court must sustain the judgment in a court-tried case unless no substantial evidence supports it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Moreover, a decision to reverse because the judgment is against the weight of the evidence is made with caution and with a firm belief that the judgment is wrong. Id. The trial court is free to accept or to reject all, part, or none of the testimony of any witness. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We, therefore, accept as true the evidence and inferences therefrom that are favorable to the trial court's decree and we disregard all contrary evidence. Id.

In her first point on appeal, Wife alleges the trial court erred in rejecting her claim that the Separation Agreement was procured by the fraudulent and collusive conduct of Husband and the parties' joint counsel, McCalpin. Contending that the trial court should have set aside the Separation Agreement and dissolution decree, Wife alleges that, as a result of the fraud perpetrated by Husband in concealing the limited nature of McCalpin's representation, Wife was denied access to the independent advice of her own counsel. The trial court, however, refused to set aside the Separation Agreement. It specifically found that Wife's testimony that the Separation Agreement was obtained by fraud and duress was not credible.

When seeking to set aside a final decree of dissolution, a litigant must prove extrinsic fraud. ² McCarty v. McCarty, 300 S.W.2d 394, 400-01 (Mo.1957). When seeking, however, only to rescind portions of a property settlement in order to allocate marital property not previously considered, proof of fraud is unnecessary. Karney v. Wohl, 785 S.W.2d 630, 633-634 (Mo.App.E.D.1990).

In the case at bar, Wife denominated her initial pleading as "Petition to Divide Unapportioned Marital Property and Set Apart Separate Property and/or to Rescind Separation Agreement, Set Aside Decree of Dissolution and Reopen Dissolution Proceedings, and/or Damages." Her petition was filed in five counts, although at trial Wife dismissed Counts II and V without prejudice. Count I sought to divide and apportion previously unallocated property. Count III asserted a claim of fraud and misrepresentation. Count IV asserted claims that the Separation Agreement and the decree were the result of violence, intimidation, duress, coercion and undue influence perpetrated by Husband. Thus, to prevail on Count III, Wife was required to prove the elements of fraud that include (1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity; (5) the speaker's intent that the statement should be acted upon by the other party in the manner contemplated; (6) that party's ignorance of its falsity; (7) reliance on the truth; (8) the right to rely thereon; and (9) injury. Curtis v. Kays, 670 S.W.2d 887, 891 (Mo.App.1984).

A review of the record before us discloses that Wife failed to demonstrate fraud. While the essence of her evidence did suggest that Husband and McCalpin prevented her from learning what she needed to know about Husband's business affairs and about matters relating to the dissolution, Husband's evidence contradicted hers. Thus, the trial court was entitled to believe Husband's evidence that McCalpin cautioned Wife numerous times that she might consult with another attorney, that Wife was fully aware of Husband's property, and that the parties had reached an agreement as to property prior to consulting with McCalpin. The trial court explicitly evaluated the credibility of testimony presented by both Husband and Wife. We find no error in its finding that the...