Wagner v. Wagner, WD
| Decision Date | 28 January 1992 |
| Docket Number | No. WD,WD |
| Citation | 823 S.W.2d 523 |
| Parties | Ronnie Lynn WAGNER, Respondent, v. Teresa Lee WAGNER, Appellant. 44392. |
| Court | Missouri Court of Appeals |
Jimmie D. James, James, Lund, Biagioli & Sperry, Independence, for appellant.
Randall W. Shackelford, Lexington, for respondent.
Before TURNAGE, P.J., and KENNEDY and BRECKENRIDGE, JJ.
Teresa Lee Wagner appeals from a decree of dissolution of marriage, claiming that the trial court erred by: (1) awarding her only $350.00 per month per child in child support as said amount does not conform to Rule 88.01 and Form 14 and no finding was made by the court that application of Rule 88.01 would be unjust or inappropriate; (2) abusing its discretion in failing to award retroactive child support; (3) awarding husband, Ronnie Lynn Wagner, all the value of the marital real estate in that such distribution is inequitable; (4) abusing its discretion in failing to award her some portion of her attorney's fees; and (5) abating all child support obligations of husband during the two months he was awarded summer visitation. Ronnie Lynn Wagner has filed a motion to remand the case to the trial court and said motion was ordered to be taken with the case. In his motion, he contends that the decree of dissolution is not a final order in that the trial court failed to set off his non-marital personal property or alternatively divide said property between the parties as required by § 452.330.1, RSMo Supp.1988, in that there was extensive evidence at trial as to antiques which he claimed were non-marital property and this property was not mentioned in the decree. His contention is correct and thus, the appeal is dismissed.
Teresa Lee Wagner ("wife") and Ronnie Lynn Wagner ("husband") were married on April 16, 1985. They separated, for the first time, in August, 1986 and husband filed for dissolution on September 3, 1986. The parties reconciled a month later, and remained together until their second separation on November 29, 1988.
On September 26, 1990, the trial court ordered that the marriage be dissolved and took all other issues under advisement. In a supplemental decree, custody of the children was awarded to wife and child support was ordered to be paid by husband to wife. The court also set off to wife as her separate non-marital property, real estate located at Truman Lake which had been acquired by her prior to the marriage. Various pieces of marital property were also divided between the parties. Both before and during the marriage, husband collected antiques. There was extensive evidence at trial with regard to these antiques which husband claimed were his non-marital property, but which were primarily in the possession of wife. The trial court failed, however, to set off this property as required by § 452.330.1, RSMo Supp.1988. It neither determined the property to be marital or non-marital, nor made distribution of any such property determined to be marital.
Husband bases his argument for remand on Zahabi v. Zahabi, 760 S.W.2d 539 (Mo.App.1988) and Shewey v. Shewey, 725 S.W.2d 921 (Mo.App.1987). This court in Shewey stated the applicable rule as follows:
In State ex. rel. McClintock v. Black, 608 S.W.2d 405, 406 (Mo. banc 1980), the Court held that when undistributed property is discovered before the time for an appeal has run, the appellate court must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not entered a final judgment from which an appeal can be taken.
State ex rel. McClintock v. Black, 608 S.W.2d 405 (Mo. banc 1980), addressed the problem of undistributed marital property in the form of a mandamus action. The court in McClintock stated specifically that when undistributed property is discovered before the time has run for appeal "the appellate court, when presented with the issue of undistributed property, must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not rendered a final judgment from which an appeal can be taken." Id. at 406. See also Meltzer v. Meltzer, 775 S.W.2d 120 (Mo. banc 1989). The appeal in this case raises an issue concerning undistributed property as wife is contesting the property division made by the trial court.
Husband did not appeal from the trial court's failure to distribute the property in question. He did not take any action on the matter at all until he filed a motion to remand in this court, well after his time to appeal had run out. This inaction, wife contends, bars him from raising the issue here. There is no requirement, however, that the omission be raised by the party appealing the property division, but instead only that the issue be presented to the appellate court. In the cases cited by the wife which require a separate equity action for undistributed property, there was no appeal pending with the division of property at issue, as in the case at bar. 1
Wife further contends that in the instant case "there is no appeal from the court's failure to distribute non-marital property." Wife is contesting the "amount of property that was distributed to Ronnie." Her designation of the appeal as pertaining only to the marital property awarded by the trial court ignores the interrelationship between marital and non-marital property and the failure by the trial court to designate the omitted property into either class of property, marital or non-marital. In Frame v. Frame, 696 S.W.2d 332 (Mo.App.1985), the wife appealed from the trial court's division of marital property. This court dismissed the appeal for lack of a final judgment where the lower court's judgment did not "dispose of all the marital property and separate property." Id. at 334. The court noted:
One of the primary purposes of the Dissolution of Marriage Act is that the rights of the parties in their separate and marital property be determined. Anspach v. Anspach, supra, 557 S.W.2d at 5 [ (Mo.App.1977) ]. The court must first decide whether each asset or class of assets is marital or separate property in accordance with § 452.330.2. Id. When the status of the property of the parties is not determined, the court has not exhausted its jurisdiction, and the judgment is not final and appealable. Id. The court here did not designate all the property as marital or separate property.
The omitted property was not designated as either marital or non-marital by the trial court. In Barron v. Barron, 749 S.W.2d 16, 17 (Mo.App.1988), this court stressed the relationship between marital and non-marital property stating, "Identification of separate and marital property is a necessary antecedent to a...
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