V-- D. S-- v. W-- E. S--

• Decision Date: 19 January 1973
• Parties: V_ _ D. S_ _, Plaintiff-Respondent, v. W_ _ E. S_ _, Defendant-Appellant. No KCD26087.
• Court: Missouri Court of Appeals

Page 344

490 S.W.2d 344

V_ _ D. S_ _, Plaintiff-Respondent, v. W_ _ E. S_ _, Defendant-Appellant.

No KCD26087.

Missouri Court of Appeals, Kansas City District.

Jan. 19, 1973.

Walter R. Simpson, Sheridan, Sanders, Carr, White & Mason, Kansas City, for defendant-appellant.

Austin F. Shute, Kansas City, for plaintiff-respondent.

Before DIXON, P.J., and CROSS, and SWOFFORD, JJ.

SWOFFORD, Judge.

This is an appeal from an order of the Circuit Court dated January 4, 1972, setting aside a decree of divorce granted to the plaintiff-respondent on January 11, 1971 (motion for reconsideration overruled February 4, 1972) and an order of February 4, 1972, awarding partial attorney's fees to her for legal services rendered by her attorney in connection with her motion to set aside the said divorce decree.

This motion of the plaintiff was based upon the alleged fact that at the time of the hearing of her divorce action, she was suffering from a severe mental illness; was under involuntary commitment to the Western Missouri Mental Health Center through the Jackson County Probate Court; was not mentally competent to make decisions affecting her action for divorce, including her waiver of alimony; that such matters were well known to all parties concerned with the divorce action, but were not disclosed to the trial judge, and that, thereby, a fraud was perpetrated on the court, requiring that the decree be set aside.

After a hearing on this motion, it was sustained and this appeal followed in proper form and in due course. The parties will be referred to as they were below.

The plaintiff and defendant were married December 27, 1959 and were separated October 6, 1970. Three children were born of the marriage and were aged 11, 9 and 7, at the time of the separation. The defendant was an employee of Western Electric Company on an hourly wage, and the plaintiff at the times pertinent here was not employed, although she had formerly worked as a cashier and retail saleslady.

The record before us shows that the plaintiff had suffered at intervals since 1967 with various forms of emotional and mental illness and had from time to time received both inpatient and outpatient care and therapy at facilities of the state, primarily the Western Mental Health Center at Kansas City, hereinafter referred to as 'Western'. She had been given both group and individual therapy, attempts at vocational rehabilitation, and she and the defendant had received marriage counseling. She had never been adjudicated incompetent under the law. Without belaboring this rather sordid picture of social, mental and marital difficulties, for the present purpose it should be stated that the record shows that on September 23, 1970, by order of the Probate Court of Jackson County, Missouri, she was placed in Western for involuntary hospitalization under the provisions of Section 202.807 V.A.M.S. The application for this order was made by the defendant and apparently at that time they were both represented by counsel.

The staff at Western concluded that her diagnosis was 'Paranoid-Schizophrenic' and that this mental illness stemmed in large part from her marital situation, and that she should be separated or divorced from her husband, the defendant. Following this advice and with the assistance of members of the Western staff and of her sister, she employed the firm of Blumer, Wright, Bittiker and Rocha to represent her. Mr. Rocha of that firm handled the matter. The defendant was represented by Mr. Walter R. Simpson of the firm of Sheridan, Sanders, Carr, White and Mason.

On October 5, 1970, the plaintiff was released from Western where she had been undergoing individual therapy under the involuntary hospitalization order of the Probate Court. The exact nature of this release is somewhat obscure, but the defendant's counsel and plaintiff's sister were under the impression that it was final release, although under the procedures at Western it was probably a release on Trial Visit status.

On October 7, 1970, the plaintiff filed her action for divorce against the defendant. On November 10, 1970, the defendant filed his answer and cross-petition, and on that same day the plaintiff filed her reply.

The record discloses that a period of arm's-length negotiations between counsel and the parties ensued, which culminated in a property settlement agreement (P. Exh. No. 1) executed by the parties and witnessed by their respective counsel. The basic provisions of this agreement provided that the plaintiff was to receive the equity in the family residence in Lee's Summit, Missouri and would assume the future mortgage payments, the household furnishings and a Chevrolet automobile, as alimony in gross. The defendant was to receive a 1960 Pontiac automobile (described as practically inoperable) and a 1970 Oldsmobile, upon which the defendant was making payments.

The defendant further agreed that subject to court approval, the plaintiff would have custody of the three minor children and that he would pay $360.00 per month for their support, reserving visitation privileges.

This agreement disposed of practically all of the marital property, except a small savings account and 5 shares of AT&T stock, both of which were liquidated by the defendant to pay costs and attorney's fee. He stated that this left him with the two cars and 'the clothes on my back'.

On January 11, 1971, the plaintiff and her then counsel and counsel for the defendant appeared in Division No. 8 of the Circuit Court of Jackson County, the defendant withdrew his answer and cross-petition, and a default judgment was entered in favor of the plaintiff, granting her a divorce, the custody of the children, $120.00 per month per child, reasonable visitation to defendant, and for costs. During the course of this hearing, the plaintiff identified the property settlement agreement, stated she understood its terms as to gross alimony, that she was not asking for any permanent alimony and understood she could not come back into court in the future and seek alimony. She stated she was looking for work and could do some work to earn money.

Nothing was placed in the record or before the court as to the plaintiff's past mental and emotional problems nor her confinement in Western. No guardian ad litem was appointed for her.

On March 30, 1971, defendant filed a motion for modification of order of custody of minor children, based upon a change of condition. His grounds were that plaintiff had not obtained employment, had allowed the home mortgage to become in default, and bills for utilities and necessities to become overdue, had neglected the children, had physically attacked defendant, and was under the care of a psychiatrist and had hallucinations.

On April 26, 1971, another division of the Circuit Court, made an order granting defendant temporary custody of the children because of the illness of plaintiff. On April 29, 1971, the plaintiff appeared before that court by attorney and the defendant appeared in person and by attorney, and after hearing, the court granted custody of the children to the defendant and ordered that the child support to plaintiff should abate.

On August 27, 1971, plaintiff, through present counsel, filed a motion for temporary alimony, and on August 28, 1971, she filed her motion to set aside the divorce decree of January 11, 1971 upon the grounds above stated. On August 16, 1971, plaintiff had been readmitted to Western as an inpatient at the request of her sister and the Welfare office. On August 25, 1971, she was transferred to St. Joseph State Hospital for 'Long term treatment. Job training and Placement'.

The records of Western (P. Exh. No. 3) at this time contain some revealing information in the Narrative Summary, which seems to be relevant here. On page 1 of this summary, it is stated:

'Mrs. C_ _ has retained the services of Austin Shute, LL.D. He plans to claim Mrs. S_ _'s divorce was fraudulent as she was psychotic at the time. If Mr. Shute wins the case Mr. and Mrs. S_ _ will be legally married again and Mr. S_ _ will be responsible for his wife's debts. While such a state of affairs will aid the patient financially it will be psychologically confusing to her.'

And on page 2 of this summary, it is stated:

'My recommendations to Mrs. C_ _ has been that if Mr. Shute wins the court action there be legal restrictions placed on Mr. S_ _'s visits with and treatment of his wife.'

On September 7, 1971, a hearing was had in the court below on plaintiff's motion to set aside the decree of January 11, 1971. The plaintiff's sister, Mrs. C_ _, was appointed next friend of the plaintiff and she appeared also by her then counsel. The defendant appeared in person and by counsel.

Plaintiff in support of her motion to set aside the decree offered a transcript of the hearing leading to the divorce decree on January 11, 1971 (P. Exh. No. 1) and the Mental Health file from the records of the Probate Court with reference to the plaintiff (P. Exh. No. 2). These were offered and admitted without objection.

Plaintiff offered as her witness Dr. Norman B. Coleman, M.D., the psychiatrist on the staff of Western, who had direct control and direction of plaintiff's treatment there since its inception. He identified the complete file on plaintiff (P. Exh. No. 3) which was offered and received into evidence without objection. He diagnosed plaintiff's mental condition as 'Schizophrenia of paranoid type'. Plaintiff was released from Western on October 5, 1970 on a trial basis. Pertinent here, he testified that during the six years of his contact and treatment of plaintiff 'her cognitive function, her ability to calculate, to remember well, to do the calculation processes of the mind, were perfectly intact at all times', and that she still is 'capable of reasoning logically, making decisions, managing her affairs' so long as such did not involve the delusional area. He stated that when plaintiff was...