Swinford v. Swinford

• Decision Date: 04 December 1984
• Docket Number: No. WD,WD
• Citation: 682 S.W.2d 189
• Parties: Nancy Ellen SWINFORD, Appellant, v. Darrel Joseph SWINFORD, Respondent. 35267.
• Court: Missouri Court of Appeals

Page 189

682 S.W.2d 189

Nancy Ellen SWINFORD, Appellant, v. Darrel Joseph SWINFORD, Respondent.

No. WD 35267.

Missouri Court of Appeals Western District.

Dec. 4, 1984.

Betsy Ann T. Stewart, Independence, for appellant.

William A. Mayer, Kansas City, for respondent.

Before TURNAGE, C.J., and MANFORD and KENNEDY, JJ.

TURNAGE, Chief Judge.

The trial court granted a Dissolution of Marriage to Nancy Swinford and Darrel Swinford, and subsequently ordered the marital real estate to be sold. The court directed each party's share to be subject to certain expenses. Nancy appeals. Reversed and remanded.

The court dissolved the marriage on April 29, 1982. The decree contained the property settlement agreement entered into by Nancy and Darrel as it applied to the real estate. The decree described the marital real estate only in terms of a postal address. The decree stated that the real estate was listed for sale and that the parties agreed to continue listing the property for sale, and to do everything necessary to help facilitate a sale. Darrel was given the right to occupy the real estate pending the sale, with the obligation to pay the mortgage payments, taxes, and insurance until the sale was closed. The decree did not contain any provision that divided the real estate or allocated its ownership between the parties, nor did it provide for the disposition of the proceeds of a sale.

On December 3, 1982, Nancy filed a motion asking the court to appoint a receiver to sell the real estate, and on December 20, 1982, the court entered an order appointing a receiver to sell the property. This order did not specify any terms of sale nor direct that such sale be public or private.

On July 27 and 28, 1983, the court heard a number of motions, including a motion by the receiver for an order to sell the property and for distribution of the proceeds. The receiver testified that he was a licensed real estate broker, and that he had appraised the real estate at $88,500. The receiver testified that he had agreed orally with Darrel to sell him the property for $77,880, and that he had not attempted to sell the property to anyone else. The receiver stated that he agreed to sell to Darrel at the reduced price because if the property were sold to a third party, at least $10,000 of expenses would be incurred.

The court recessed the hearing to give the receiver and Darrel an opportunity to sign a contract for the sale of the property for $77,880. The court thereafter entered an order approving the sale to Darrel for $77,880 and provided that the receiver first pay a small balance to Mastercard from the sale proceeds, and thereafter divide the proceeds equally between the parties. The court ordered Darrel's share of the proceeds to be subject to a $500 payment to Nancy for compensation of a tractor, and payment to Nancy of back child support. The court ordered Nancy's share to be subject to $2,400 for Darrel's attorney fees, $929 for the receiver's fee, and $585 for the receiver's attorney fees. Darrel was also ordered to pay the receiver $500 from his share. The judgment did not determine the ownership of the real estate but only divided the proceeds.

Nancy has appealed both the sale of the property to Darrel for $77,880, and the fees ordered paid from her share.

Before Nancy's assertions of error can be reached, a more fundamental defect is apparent. At the time the court appointed a receiver to sell the property, the ownership of the real estate had not been decided. Until the court divides the real estate and vests the ownership in one party or the other or in the parties in definite proportions, the court has not exhausted its jurisdiction in the dissolution case with respect to the real estate. State ex rel. Brewer v. Sheehan, 565 S.W.2d 850 (Mo.App.1978). Until the court determines the ownership of the real estate, it has no jurisdiction to order its sale. See id. at 851. This follows from the fact that the court still retains jurisdiction over the real estate until its ownership is decided.

Because the court failed to dispose of the real estate in the dissolution decree, it had no jurisdiction to appoint a receiver and order the sale of the property. A judgment entered by a court without jurisdiction to act on the matter is void. School District No. 46 v. Stewartsville School District, 232 Mo.App. 631, 110 S.W.2d 399, 404 (1937). For that reason the judgment must be reversed and this cause remanded for further proceedings.

In view of the remand, it is necessary to discuss the judgment entered lest the trial court conclude that it could simply distribute the real estate and then enter the same judgment. It should first be noted that the trial court can order a sale of marital real estate. This court has held that a trial court may order the sale of real estate under the power vested by § 452.330, RSMo 1978 (now Supp.1984) to divide the marital property. Wilhoit v. Wilhoit, 599 S.W.2d 74, 80[8-11] (Mo.App.1980). In Flach v. Flach, 645 S.W.2d 718 (Mo.App.1982), the court amended the decree to include a provision that the trial court appoint a commissioner to sell the home if the parties could not agree on a sale price. Id. at 721. Other states with statutes similar to § 452.330 have recognized the trial court's power to order a sale of real estate as an adjunct to its power to divide marital property. See Jekot v. Jekot, 32 Colo.App. 118, 507 P.2d 473 (1973); Rummel v. Rummel, 265 N.W.2d 230 (N.D.1978); Zillert v. Zillert, 395 A.2d 1152 (Me.1978); Walker v. Walker, 119 N.H. 551, 404 A.2d 1103 (1979).

While the court has the power to order a sale of real estate to accomplish the division of property, no statute or rule prescribes the procedure to be followed. This court will not attempt to prescribe such a procedure because of the various factual situations which may arise. Generally, however, it may be said that there are at...