Swank v. Swank

• Decision Date: 23 November 1993
• Docket Number: No. WD,WD
• Citation: Swank v. Swank, 865 S.W.2d 841 (Mo. App. 1993)
• Parties: David Eugene SWANK, Respondent, v. Victoria SWANK, Appellant. 46646.
• Court: Missouri Court of Appeals

Page 841

865 S.W.2d 841

David Eugene SWANK, Respondent, v. Victoria SWANK, Appellant.

No. WD 46646.

Missouri Court of Appeals Western District.

Nov. 23, 1993.

Debra Linn Snoke, Kansas City, for appellant.

Kenneth C. Hensley, Raymore, for respondent.

Before KENNEDY, P.J., and LOWENSTEIN and ELLIS, JJ.

PER CURIAM.

Victoria Swank appeals from a decree of dissolution, claiming that the trial court erred by approving a settlement agreement which was not in writing and which did not dispose of the entire marital estate, and by failing to find that the agreement was not unconscionable. Swank also claims that there was insufficient evidence to support the child support provisions in the decree of dissolution.

Reversed and remanded.

Victoria and David Eugene Swank were married on August 15, 1975, and they separated on November 21, 1990. Their marriage produced four children: Elizabeth Swank, born June 16, 1976; Jacqueline M. Swank, born August 31, 1977; Eugene David Swank, born September 29, 1980; and Rebekah M. Swank, born August 13, 1982.

On April 16, 1991, David filed a petition for dissolution of marriage, and Victoria responded with a cross-petition for dissolution. The parties appeared at a hearing on May 22, 1992, where they testified that a settlement agreement had been reached after lengthy negotiations. David testified that the agreement would apportion the parties' property as follows: Victoria was to receive the marital home; an additional parcel of real estate containing one hundred and sixty acres, as well as the leasehold income from that property; a lump sum payment of one hundred thousand dollars; a 1986 van; and the 1991 Chevrolet Cavalier which she had been driving.

David further testified that, pursuant to the agreement, he would receive the remaining farmland; the farm machinery; the remaining vehicles; an automotive business known as Carroll County Auto Body; a house in Independence, Missouri; and a house in Kansas City, Missouri. In addition, he acknowledged, he would be responsible for approximately half a million dollars' worth of debt. Also, he testified, he would retain certain real estate in a trust for the sole benefit of the children, and he would give Victoria a number of savings bonds to be held for the children.

Victoria also testified at the hearing and corroborated David's testimony on the details of the agreement. In addition, she acknowledged that she would receive patronage dividends on the land assigned to her, and that David would receive patronage dividends on the land assigned to him. She also acknowledged, although she maintained it was unfair, that David would receive the patronage money which the couple had already paid in.

Repeatedly during her testimony, Victoria maintained that the agreement was unfair, and that she was being discriminated against by the terms of the agreement. Nevertheless, she testified, she was accepting the agreement because she believed that she had no choice.

Victoria was also questioned by her attorney about the need to reduce the proposed settlement agreement to writing, and the question prompted the trial court to make the following remarks about the settlement agreement:

VICTORIA'S ATTORNEY: You understand that that agreement will be reduced to writing here by myself or Mr. Hensley as a Property Settlement Agreement, and you will be required to sign that document?

VICTORIA: I understand that.

THE COURT: That will be incorporated by either reference, or in order to make the whole thing a complete thing, you might just incorporate it all, instead of having the separate property settlement agreement. Also you really ought to put into the file some semblance of Form 14 in order to cover that. If it is a deviation from what would normally be the amount, make a finding then they that the other schedule would be inappropriate or unjust according to the rule.

DAVID'S ATTORNEY: Put the property settlement in the decree, all the terms, and sent it to the attorneys?

THE COURT: Until the Court approved the property settlement agreement as to whether or not it is fair and not unconscionable, it really isn't binding on anyone as far as the settlement is concerned. You can make it either way you want to, but since you have so many things here that relate to the decree, you can incorporate it by reference, except as to custody, child support, visitation, and no maintenance, and the court costs and all that. Do it whichever way you would feel more comfortable with it. But the basic things, if you just made a decree and incorporate it right in the decree, it would have the signature of the Court as approving it, not only the recitation in there, but also it should be probably just made a whole decretal-type thing.

Normally if we were doing this in a proper manner, we would have a separation agreement entered into court at the time of the hearing. It would be already signed, Make it part of the decree. Incorporate it altogether. Any other questions?

At the close of the hearing, the trial court instructed the parties as follows:

THE COURT: [Y]ou prepare a proposed decree based on this hearing today.... Prepare the proposed decree, approve it as to form yourself, and leave a place for her. When you get that decree, look it over. You know what we have agreed to. Make a finding that it is fair and not unconscionable. I can make that finding on the basis of the evidence.

The trial court's docket sheet indicates that, on June 9, 1992, a decree of dissolution was filed. However, a docket entry dated June 10, 1992 states that, on that day, the trial court set aside the decree because of objections to it. The 6/10/92 entry further states that any new proposed decree "must be approved by the respective attorneys before submission to the Court for approval."

A subsequent docket entry indicates that a new decree was filed on June 22, 1992. Part of this decree of dissolution consisted of a property settlement agreement which included the terms described in the May 22, 1992 hearing. The decree also awarded custody of the parties' four children to Victoria, and ordered David to pay four hundred dollars per child per month in child support. However, the agreement did not comport with the trial court's final instructions at the hearing insofar as it did not include a space for Victoria's signature to indicate that she had approved the agreement.

On July 10, 1992, Victoria filed a motion to set aside the decree, claiming that the settlement agreement failed to dispose of all the property, and that the agreement was invalid because it was oral. The motion, which was untimely filed, was never ruled upon by the trial court.

In her first point on appeal, Victoria claims that the trial court's decree was erroneous because the decree incorporated the terms of an oral settlement agreement, and such an agreement is required by section 452.325.1, RSMo 1986 to be in writing.

Section 452.325.1 provides that the parties to an action for the dissolution of marriage "may enter into a written separation agreement." In Turpin v. Turpin, 570 S.W.2d 831, 834-35 (Mo.App.1978), this court interpreted this statutory language to mean that, if the parties do elect to enter into a separation...