Turpin v. Turpin, KCD

• Decision Date: 28 August 1978
• Docket Number: No. KCD,KCD
• Citation: Turpin v. Turpin, 570 S.W.2d 831 (Mo. App. 1978)
• Parties: Libbie Anita TURPIN, Petitioner-Respondent, v. John Franklin TURPIN, Respondent-Appellant. 29708.
• Court: Missouri Court of Appeals

Page 831

570 S.W.2d 831

Libbie Anita TURPIN, Petitioner-Respondent, v. John Franklin TURPIN, Respondent-Appellant.

No. KCD 29708.

Missouri Court of Appeals, Kansas City District.

Aug. 28, 1978.

M. Sperry Hickman, M. Sperry Hickman, Inc., Independence, for respondent-appellant.

F. Keith Brown, Russell, Brown, Bickel & Breckenridge, Nevada, for petitioner-respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SWOFFORD, Chief Judge.

This is a dissolution of marriage proceeding that comes to this Court upon a most unique record. The action was filed by the respondent-wife in February of 1977. In her petition, she alleged that the parties were married on January 14, 1964 and were separated on February 18, 1977; that there were two children born of the marriage, Dollie Renee Turpin born October 1964 and Sandra Sue Turpin, born January 1966; that in addition, Gary Dale Turpin, born June 1968, a foster child, is a member of the household and she has cared for him since he was six months old; that no contractual arrangements have been made between the parties as to custody and support of the children, maintenance of the wife, or division of marital property; and, that the marriage is irretrievably broken. She requests a decree of dissolution and custody of the children (including the foster child) subject to reasonable visitation; child support for the natural children; temporary support and maintenance for herself; division of marital properties and assets; approval of any settlement agreement which might be concluded between the parties and to set forth the terms thereof in the decree and order the parties to fully perform the same; and, attorneys' fees and costs.

In March 1977, the appellant-husband filed his answer to this petition in which he admits the historical data concerning the marriage and all formal allegations. He also admits the existence of marital property and states there are also separate properties of the parties. He denies that the best interests of the natural children and the foster child would require that custody be awarded to the wife and asks that he be granted their care and custody. He further denied (a rather incomprehensible allegation) the wife's request for a decree of division of marital property or approval of any future settlement agreement.

His answer further admitted that the marriage was irretrievably broken but denied any misconduct on his part.

The matter came on for hearing on June 14, 1977 and the wife appeared in person and by counsel. The husband also appeared in person and by counsel, who, it later developed in the record, was also his banker. He is presently represented by other counsel.

The only evidence, oral or documentary, introduced at the hearing was the testimony of the wife, which consists of three transcript pages covering the formal elements of her case and that the marriage was irretrievably broken. She asked for the custody of the two natural born children and $240.00 per month for their support. Her examination concluded with this:

"Q. (By Mr. Brown) Now, you and your husband have entered into an agreement with regard to disposition of property and we are prepared to stipulate this before the Court today, is that correct?

A. Yes."

Mr. Irvin, counsel for the husband, when invited to cross-examine, stated, "No, I have no questions". The transcript then discloses that the following occurred:

"THE COURT: Now, if you would, Mr. Irvin (counsel for husband), like to stipulate to the Court what the property settlement is in the record, it would be fine.

MR. BROWN: (Counsel for wife) Yes, Your Honor. It is stipulated by and between the parties that the dissolution should be granted, custody of the two minor children aforementioned shall be placed with the wife, subject to visitation rights of the husband, to-wit: the first and third weekend of each month, from 8:00 a. m. Saturday morning to 8:00 p. m. Sunday evening; and then during the month of July the children shall be with the husband."

Mr. Brown then related the stipulation as to division of property, including two residential properties, and as to costs and attorneys' fees, and present and future debts of the parties. Thereupon, the record shows the "EVIDENCE CLOSED". This Court thereupon made the following findings:

"THE COURT: The Court is going to find the marriage to be irretrievably broken and will grant the dissolution of marriage. The Court awards care, custody and control of the children to the petitioner, with the respondent to have visitation as outlined in the stipulation.

The Court awards child support in the sum of $240.00 per month payable through the Court.

The Court finds the property settlement not to be unconscionable and it is hereby approved.

$120.00 will be due the 15th, and then $240.00 on the 1st day of August, and on the 1st day of each month thereafter. " (Emphasis added)

A Docket Entry was made the day of the hearing basically incorporating the above findings, and concluding with the cryptic statement, "Court approves property settlement".

On June 20, 1977, the husband, with new counsel, filed in the court below a pleading captioned "Motion to Set Aside and Vacate the June 14, 1977 Default Judgments and Orders Herein, For Change of Judge, Or in the Alternative, Notice of Appeal".

This motion requests a full evidentiary hearing on the issue of child custody; asserts that the wife is unfit as custodian of the children by reason of an extramarital affair with one Bob Clark; and, alleges that the terms of the property settlement will force him to discontinue his business as building contractor. The basis for his request that the decree of June 14, 1977 be set aside is that he was placed in the position in pre-trial conference with the trial court, parties and counsel where he was coerced or pressured into a reluctant agreement to the settlement in that the Court had apparently decided how it would rule the case; that he, the husband, did not fully comprehend the terms of the settlement nor the consequences thereon on his children, himself or his business; and, that his then attorney, Roger Irvin, was never authorized to make any agreement as to custody or division of marital property on his behalf.

The record does not show that any notice was given to the wife or her counsel of the hearing on the motion, which was held on July 15, 1977. Neither the wife nor her counsel appeared at this hearing.

The husband testified in support of his motion at considerable length but no useful purpose will be served here by a review thereof except to note that under questioning by the trial court, he admitted conferring with his counsel-banker, Mr. Irvin, on the morning preceding the pre-trial conference with regard to settlement terms; that the attorneys supplied the Court with a list of the parties' assets and liabilities, which were discussed in chambers, although the list contained an error in computation of $13,000.00 "in the wife's favor"; that he told the Court the wife was a good mother for the children; and, that he had stated to the Court that he understood the settlement proposal and it was agreeable with him, that "he guessed it would be all right".

At the conclusion of this testimony, counsel for the husband called the Court's attention to the fact that no formal decree had been entered following the original hearing. The Court responded that such a decree would be entered. The transcript then contains an undated "Decree of Dissolution of Marriage" with the notation that it was filed "on a date that cannot be determined", which incorporates the terms substantially as stipulated at the original hearing of June 14, 1977. The Amended Notice of Appeal includes an appeal from the judgment of June 14, 1977 and "July 28, 1977". No question is raised as to the sufficiency or timeliness thereof.

The first point raised by the husband as appellant herein is that the Court erred in awarding custody of the children to the wife because there was no evidence from which to make such an award which is a necessary prerequisite upon which to base a finding as to the best interests of the children.

Indeed, this record is absolutely devoid of any evidence whatsoever upon which to base the trial court's award of custody in this case, except the purported agreement between the parents, which is suspect in light of the husband's present position. This nebulous "agreement" is the only one of the factors which, under the provisions of Section 452.375 RSMo 1969 (Laws 1973), the trial court "shall...