Troxell v. Troxell

• Decision Date: 27 February 1978
• Docket Number: No. 29225,29225
• Citation: 563 S.W.2d 135
• Parties: Nadine TROXELL, Plaintiff-Respondent, v. Francis M. TROXELL, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 135

563 S.W.2d 135

Nadine TROXELL, Plaintiff-Respondent, v.Francis M. TROXELL, Defendant-Appellant.

No. 29225.

Missouri Court of Appeals, Kansas City District.

Feb. 27, 1978.

Brown, Buckley & Cassing, Sedalia, for defendant-appellant.

George H. Miller, Royal M. Miller, Sedalia, for plaintiff-respondent.

Before WELBORN, Special Judge, Presiding, and PRITCHARD, J., and HIGGINS, Special Judge.

Appeal from judgment which set aside portions of a property settlement between the parties, previously approved as an incident of their divorce, and a warranty deed executed by Nadine Troxell in favor of Francis M. Troxell as an incident of the property settlement.

The questions are whether the evidence warrants findings of fraud practiced by Francis M. Troxell on Nadine Troxell in procurement of the settlement and deed upon which to set them aside; and whether the court abused its discretion in denial of a continuance.Affirmed.

The divorce action filed by Nadine Troxell against Francis M. Troxell was heard by the Honorable Charles V. Barker June 14, 1971.Mrs. Troxell appeared in person and by attorney, Frank M. Brady, now deceased; Mr. Troxell appeared in person.Mrs. Troxell provided evidence sufficient for an uncontested decree of divorce, and identified the property settlement in question.

Nadine and Francis were previously married to each other in 1946 and subsequently divorced.They remarried March 17, 1955, at which time they had three emancipated children from their prior marriage.They subsequently had two children, minors as of the present divorce.

They separated April 8, 1971; and, although she thought she had "treated him pretty good,"he would become angry with her and would fuss, quarrel, and bicker with her.He appeared to have lost all affection for her, and they had become incompatible to the point where they could no longer live together.

The following transpired with respect to the property settlement:

"Q Now, you made a property agreement with Mr. Troxell as to your property, and the care of the children * * * And of this $23,500.00 payment, you are to get a thousand dollars a year of that, is that right?A Yes * * * Q And that is the agreement that you signed.A Yes, sir.Q And is that satisfactory to you now?A (Witness ponders.)Well, I guess it has to be.I signed it. * * *

"THE COURT: This property settlement agreement you signed, you said you guessed it has to be all right, because you signed it.It don't have to be all right, if you don't want it to be.Are you asking me to approve this property settlement or are you not satisfied with it?THE WITNESS: Well, it wasn't what I started out wanting.THE COURT: Is it what you want me to approve today?Are you satisfied with it?THE WITNESS: (Witness ponders.)As long as he holds his word, yes, I will settle for it.THE COURT: What was that $23,000.00 for?THE WITNESS: Well, I asked for that, because I thought that is what I should have coming for the years (23) that I have put in.THE COURT: Is it in the property settlement * * * that you get so much money, and he gets the rest of the property, or what?THE WITNESS: Yes.THE COURT: What does your husband do?THE WITNESS: Well, right now, he is a salesman for Parkhurst Manufacturing Company.THE COURT: How much a month does he make?THE WITNESS: I think, between four and five hundred dollars a month.THE COURT: You think you can support these children on $37.50 a month?THE WITNESS: I don't think I can.But then, I intend to work.

"THE COURT: What do you think the property is worth that you and he own?Mr. Troxell, maybe you better come up here.

"THE WITNESS: The thousand acre farm, I think is worth at least $80.00 an acre, between eighty and ninety dollars an acre.* * * THE COURT: How much is owed on it?THE WITNESS: Twelve thousand, eleven thousand, five hundred.THE COURT: You don't think you are getting half of the value there?THE WITNESS: No, I'm not getting half of it.THE COURT: Is your name on the deed?THE WITNESS: Yes, sir.THE COURT: You understand, if the divorce is granted, that you are entitled to half of it, unless you agree to convey it over to him?THE WITNESS: (Witness ponders.)THE COURT: Do you understand that?THE WITNESS: Yes.THE COURT: Well you are past twenty one.I am not going to argue with you about your rights.But it seems to me that you may not be getting what you are entitled to.Are you asking me to approve it?THE WITNESS: Well, that is up to you.THE COURT: No, it's not up to me.That is what I was asking you.Are you asking me to approve it?Are you satisfied with it?THE WITNESS: Well, that is what I signed.THE COURT: That wasn't what I asked you.THE DEFENDANT MR. TROXELL: That is what I have had, twenty-five years,

"THE WITNESS: It wasn't what I originally started out asking for.THE COURT: That still isn't what I asked you.I asked you, are you satisfied with it?Do you want it approved?THE WITNESS: I had rather have some more, but I agreed to take it, so I will stick by my word.THE COURT: All right, are you asking me to approve it at this time?THE WITNESS: Yes.

"THE COURT: Do you have any questions you want to ask her, Mr. Troxell, since you are not represented by an attorney?THE DEFENDANT MR. TROXELL: I agreed not to contest, at all.THE COURT: Is that evaluation she placed on the real estate anything near what it is worth?THE DEFENDANT MR. TROXELL: Well, I give $26.00 ($26,000) for it.THE COURT: How long ago?THE DEFENDANT MR. TROXELL: Ten years ago.THE WITNESS: He gave twenty nine for it.THE COURT: If you want me to approve it, I will approve it, except as to child support.THE DEFENDANT MR. TROXELL: It is not anything but brush, trees, THE WITNESS: You were asking $100.00 an acre.THE DEFENDANT MR. TROXELL: I could ask two hundred, but what difference does that make?

"THE COURT: You understand, Mr. Troxell, this agreement you have with her is not binding on me as to child support?THE DEFENDANT MR. TROXELL: That's right, Judge.THE COURT: I do not think thirty-seven-fifty is sufficient.MR. BRADY: And this is based on the fact of the use of the premises, as long as she wanted to, and these were THE DEFENDANT MR. TROXELL: It's what we just agreed on

"THE COURT: This property settlement doesn't provide all of that.I don't know anything about that.* * * You are entitled to be to take the stand and be sworn, and say anything you want to in reference to this matter, if you want to.* * * Property settlement filed and approved; decree as per entry filed."

Mrs. Troxell filed her action to set aside the property settlement and warranty deed which she executed pursuant to the settlement November 22, 1975.

In Count I she alleged that the property settlement was entered into on or before June 14, 1972, and affected title to two lots in Fristoe, Missouri, and subject tract of 1,000 acres of land in Benton County; that Francis M. Troxell had misrepresented the value of subject tract as well as all the properties which they held by entirety; that she believed his representations and relied on them; that she had learned they were false and fraudulent and made for the purpose of inducing her to join in the property settlement.She prayed that the property settlement be set aside.

In Count II she incorporated the fraudulent misrepresentations of Count I and alleged that she was by them also induced to execute a deed conveying to Francis M. Troxell the 1,000-acre tract in question.She prayed that the deed be set aside.

Mr. Troxell, on November 22, 1975, denied the allegations of fraud, asserted superior or equal knowledge on the part of Mrs. Troxell, and counterclaimed for damages for malicious prosecution.

Mrs. Troxell filed an amended petition to add Count III for damages November 1, 1976; Mr. Troxell filed a number of motions, i. e., to dismiss, to strike, to make more definite and certain, and to elect, in the course of which laches was asserted as a defense.

The case came on for trial November 12, 1976, before the Honorable Kelso Journey, and the following transpired:

" * * * this Court was assigned as Special Judge to sit in this matter on February 12, 1976.* * * The case was set * * * for this date for trial, prior to September 7, 1976.Is the plaintiff ready to proceed, Mr. Miller?MR. MILLER: Yes, your Honor, the plaintiff is ready to proceed.MR. BROWN (for defendant): No, your Honor, MR. MILLER: * * * plaintiff will at this time ask leave of Court to withdraw plaintiff's amended petition and * * * go to trial on the original petition.THE COURT: Is there any objection * * * Mr. Brown?MR. BROWN: * * * I have no objection to his withdrawing his amended petition, but I have objection to his proceeding to trial on his original petition under the circumstances.

"THE COURT: * * * Leave will be granted for the plaintiff to withdraw the amended petition. * * * the original petition in this matter was filed on November 22, 1975; * * * the defendant filed answer and counterclaim to the two counts in the original petition on December 17, 1975, thereby putting the case at issue.What are your grounds for objecting to going to trial at this time, Mr. Brown?MR. BROWN: My grounds * * * are that when he filed the amended petitionhe raised entirely new matters which were totally foreign to the original petition.Now, I sent a letter down to the Clerk's office some two weeks or so ago, or three weeks or so ago, expecting to go to trial on the original petition.I was advised by the Clerk that there was an expectation that there would be an amended petition filed, and there was one filed within a day or two thereafter.Since the case on that basis was not at issue and could not have been at issue at this late date, because under the rule I had 20 days from the date of the filing of the amended petition to file a motion or responsive pleading, I filed my motion and I instructed the Clerk not to issue the subpoenae § based on...