Todd v. Garrison

• Citation: 417 F. Supp. 97
• Decision Date: 09 June 1976
• Docket Number: No. S75-63C.,S75-63C.
• Parties: Flora TODD, Guardian of the Estate of the following minors, Elizabeth Kimberlee Garrison et al., Plaintiff, v. Norman Asa GARRISON, Jr., Defendant.
• Court: U.S. District Court — Eastern District of Missouri

417 F. Supp. 97

Flora TODD, Guardian of the Estate of the following minors, Elizabeth Kimberlee Garrison et al., Plaintiff, v. Norman Asa GARRISON, Jr., Defendant.

No. S75-63C.

United States District Court, E. D. Missouri, Southeastern Division.

June 9, 1976.

COPYRIGHT MATERIAL OMITTED

James F. Ford, Ford, Ford, Crow & Reynolds, Kennett, Mo., for plaintiff.

John W. Reid, II, Schnapp, Graham & Reid, Fredericktown, Mo., for defendant.

MEMORANDUM

NANGLE, District Judge.

Plaintiff Flora Todd brought this action, basing jurisdiction on 28 U.S.C. § 1332, seeking to quiet title in certain real estate.

This case was tried before the Court without a jury. The Court having considered the pleadings, the testimony of the witnesses, the documents in evidence, the stipulations of the parties, and being otherwise fully advised in the premises, hereby makes the following findings of fact and conclusions of law as required by Rule 52, Federal Rules of Civil Procedure:

FINDINGS OF FACT

1. Plaintiff Flora Todd is a resident of the state of Missouri. Defendant Norman Asa Garrison, Jr. is a resident of Mississippi.

2. On June 12, 1974, the Circuit Court of Dunklin County, Missouri entered a judgment dissolving the marriage of Lee Ann Garrison and Norman Asa Garrison, Jr. A Separation Agreement was made part of the judgment. This judgment has not been appealed, vacated or superseded.

3. At the time of the dissolution, defendant herein was represented by counsel, James E. Reeves of Ward and Reeves, Caruthersville, Missouri. The Separation Agreement mentioned above was prepared by Mr. Reeves and signed by defendant. Defendant had signed a previous separation agreement, prior to retaining counsel. It was Mr. Reeves' opinion that this first separation agreement was unconscionable. Accordingly, he negotiated for, and prepared, the second Agreement which defendant signed and the Circuit Court accepted.

4. The Circuit Court of Dunklin County failed to send defendant a notice of the dissolution as provided for in § 452.320, R.S.Mo. (1974). Mr. Reeves, defendant's counsel, was at the dissolution hearing, however, and he notified defendant that the dissolution had been decreed.

5. On September 8, 1974, Lee Ann Garrison died in Kennett, Missouri. On September 20, 1974, Don S. Jones, the Public Administrator of Dunklin County, Missouri, was issued Letters of Administration in the estate of Lee Ann Garrison and continues to act in such capacity.

6. Lee Ann Garrison left four children surviving her: Elizabeth Kimberlee Garrison, Lila Annjonette Garrison, Norman Asa Garrison, III, and Candice Michelle Garrison.

7. On September 25, 1974, Flora Todd, plaintiff herein and great-aunt of the Garrison children, filed for the appointment of a guardian of the estates of the children for their estates in Missouri. This petition was filed in the Probate Court of Dunklin County. Notice of the hearing on the petition was sent to defendant by the Clerk of the Probate Court. Both defendant, his attorney, John W. Reid, II, and his attorney in Mississippi had notice of the hearing prior to the date thereof.

8. On October 10, 1974, Flora Todd was appointed guardian of the estates of the children and letters of guardianship were issued the following day. Defendant's attorney, John W. Reid, II, had appeared in Kennett, Missouri on October 9, 1974 and discussed the matter with the attorney for Flora Todd. Defendant, however, did not file any pleadings in the Probate Court relative to the appointment of Flora Todd. Mr. Reid did contact the Judge of the Probate Court on the date of the hearing, advising him that he would not be present at the hearing and that the only issue he would raise would be a petition filed in the Circuit Court of Dunklin County, concerning registration of a foreign judgment relating to defendant's appointment as guardian for three of the four children in Mississippi.

9. On September 4, 1975, the Probate Court of Dunklin County issued an order authorizing and directing that plaintiff proceed by filing this suit.

10. The separation agreement which defendant signed and which was made a part of the dissolution decree provided that defendant agreed to convey to Lee Ann Garrison property located at 1009 South Jackson in Kennett, Missouri. The conveyance was to be to Lee Ann Garrison for her life, with the remainder in fee to the four minor children. The type of deed by which the conveyance was to be made was not specified. In addition, defendant agreed to give a quit claim deed to Lee Ann Garrison covering any interest defendant might have in Cherokee Village property. The Cherokee Village property is located in Arkansas.

11. The parties herein agree that the proper description of the Kennett, Missouri property is as follows:

All of a certain parcel of land described as beginning at a point 39 rods South of the Northwest corner of the NE¼ of the SW¼ of Section 2, Township 18 North, Range 9 East, running thence East 1,131 feet to the public road, thence in a Southwesterly direction along said public road 668 feet, thence West 819 feet; thence North 587 feet, to the place of beginning, containing 13 2/3 acres, more or less, all being in the NE¼ of the SW¼ of Section 2, Township 18 North, Range 9 East, LESS AND EXCEPT a part of the NE¼ SW¼ of Section 2, Township 18 North, Range 9 East, described as beginning at the NW corner of the NE¼ of the SW¼ of Section 2, Township 18 North, Range 9 East, and running thence South 950.5 feet, thence South 81° 33' East 436.3 feet for a point of beginning and run thence South 81° 33' East 534.73 feet to a point on the West line of Jackson Street, thence South 25° 49' West 231.3 feet to a point on the North right of way line of Missouri State Highway No. 25, thence in a Southwesterly direction along said right of way on a 2° curve to the right 384 feet to the point on tangent of said curve, thence North 78° 43' West 84.5 feet, thence North 7° 27' East 289.13 feet to the point of beginning, containing 3.0 acres, more or less, also less right of way for highway purpose, Dunklin County, Missouri.

The parties further agree that the proper description of the Cherokee Village property is as follows:

Lots 84 and 85, Block 12, Cherokee Village Subdivision, Dakota First Addition, according to a plat prepared by J.F. Gore & Associates and filed of record in the Office of the Circuit Court Clerk and Ex-Officio Recorder of Sharp County, Northern District, Arkansas, in Plat Book No. 3, at page 224, and subject to the conditions and restrictions as set forth in the Bill of Assurance filed in the Office of the Circuit Court Clerk and Ex-Officio Recorder of Sharp County, Northern District, Arkansas, and recorded in Deed Record No. 45, at pages 72-74, and subject to the easements as shown on said plat.

12. Defendant did not convey the properties as required by the Settlement Agreement.

13. On September 25, 1974, defendant was appointed guardian of his minor children by the Chancery Court of Alcorn County, Mississippi.

14. On March 19, 1975, defendant and his wife, Terri Jo Garrison, executed quit claim deeds covering the two properties mentioned above, conveying the same to defendant as the natural guardian of all his children. These deeds were recorded.

15. Neither plaintiff nor defendant has produced any evidence indicating that either has qualified as a guardian of the estates of the children in Arkansas.

16. Defendant has counterclaimed seeking to quiet title in himself as natural guardian of the children. This claim is based on the March 18, 1975 conveyances of the properties referred to above.

CONCLUSIONS OF LAW

This Court has jurisdiction of the subject matter and of the parties to this suit. 28 U.S.C. § 1332.

Plaintiff brought suit requesting this Court to order defendant to execute conveyances of property in accordance with the Separation Agreement, or in the alternative, for specific performance of the Separation Agreement. Defendant contends that the following issues are involved:

1. Is the Separation Agreement unconscionable?

2. Was the Judgment Entry on June 12, 1974 in the Garrison Dissolution proceeding a final Order or interlocutory Order?

3. Are Norman Asa Garrison, Jr. and his children entitled to the private and peaceful possession of the real estate and personal property which Norman Asa Garrison, Jr. is holding for his children under the 1969 R.S.Mo. § 475.025, and are Norman Asa Garrison, Jr. and his children entitled to a Decree permanently enjoining Flora Todd from asserting any adverse claim to Norman Asa Garrison, Jr.'s children's title to said real and personal property?

The Court is of the conclusion that none of the issues can be reached herein. The evidence establishes that defendant had notice of the dissolution proceedings, had signed the Separation Agreement, and was represented by counsel. He had notice of the petition for appointment of a guardian of the estates of the minor children, and chose not to appear. He has not appealed either the dissolution decree or the appointment of plaintiff as guardian of the children's estates.

The law is clear that a court's order or judgment is immune from collateral attack if the court had jurisdiction of the parties and of the subject matter, and had the...