Warren v. Warren

• Decision Date: 08 July 1980
• Docket Number: No. WD,WD
• Citation: 601 S.W.2d 683
• Parties: Elizabeth Marnae WARREN, Appellant, v. Jimmy Dean WARREN, Respondent. 30953.
• Court: Missouri Court of Appeals

Page 683

601 S.W.2d 683

Elizabeth Marnae WARREN, Appellant, v. Jimmy Dean WARREN, Respondent.

No. WD 30953.

Missouri Court of Appeals, Western District.

July 8, 1980.

Donald L. Allen, Lee's Summit, for appellant.

Ralph E. Pratt, Independence, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

CLARK, Presiding Judge.

Elizabeth Warren, the wife and petitioner in this action for dissolution of marriage, appealed judgment awards of maintenance and child support and the order dividing marital property. On oral argument before this court, counsel abandoned the issue of property division because post-judgment transactions between the parties had rendered the question moot. Those same events, as will be hereafter detailed, have also affected review of the issue of maintenance. The contention of the wife remains, however, that maintenance and child support as awarded were inadequate.

The marriage of the parties spanned a period of twenty-four years and produced four issue, two of whom had become emancipated as of the date this action was commenced. Of the two younger children, Jimmy, Jr. was eighteen at the time of trial and, although still living at home, he was self-supporting. Erin was thirteen and dependent. Custody of Jimmy, Jr. and Erin was awarded to the wife and the husband was directed to pay child support of $25.00 per month per child.

Although she had former employment experience, the wife was disabled from working currently and she had no prospect of deriving income from her own resources at any predictable future date. By her own account, expenses to maintain herself and the daughter exceeded $1,200.00 a month assuming her continued occupancy of the family home. Because of her disability, the wife was receiving social security payments of.$373.00 a month, of which amount $125.00 was allotted for the account of the minor daughter, Erin. The husband's income was estimated at $800.00 a month with some prospect of future improvement. Family debts, in addition to two mortgages on the home, amounted to $6,500.00. The trial court declined to award the wife periodic maintenance but did order that she be paid maintenance in gross of $10,550.00 in monthly installments of $250.00. The judgment expressly provided that maintenance payment default by the husband would not accelerate unmatured installments, the consequence being that the maintenance award was equivalent to an allowance of $250.00 per month terminating at a set future date.

The only marital asset of significant monetary value was the family home having an equity of approximately $20,000.00. Other assets consisted of two automobiles, one of which was mortgaged to value, household goods and personal effects. The court divided the marital property by setting over to the husband the family home, its contents, one automobile and his personal effects. The wife received the other car and her clothing. Attorney fees for the wife amounting to $1,000.00 were ordered paid by the husband.

As noted above, further transactions between the parties occurred while this appeal was pending, the details being reported to the court by counsel on oral argument and exemplified by documents filed as a supplement to the record. The intentions of the parties and the consequences of their conduct may be in dispute, but the events themselves are not in controversy.

Soon after entry of the decree in the case, the husband determined to sell the family home which had been set apart to him and on August 27, 1979, he signed a real estate sale contract. The decree had been entered April 23, 1979, the notice of appeal by the wife was filed May 19, 1979 and by August 3, 1979 the transcript on appeal had been prepared and filed. Of course, examination of the real estate title on behalf of the buyer disclosed not only the lien of the existing judgment for maintenance in gross due the wife, but also the pendency of this appeal in which the wife challenged the order from whence the husband derived his exclusive title. The exceptions of these details required satisfaction before the sale could be closed.

In negotiations not disclosed through any record here, the wife required payment in full of the maintenance judgment and her attorney fees in exchange for which she executed a quit claim deed releasing any interest she had in the residence. The sale was thereafter completed, the wife received a lump sum payment of $10,550.00 and her attorney was paid the fee as allowed in the original judgment. After all disbursements, including satisfaction of the real estate mortgage balances, the husband realized a net recovery of $7,021.50.

From these events, the wife concedes that she has released any claim she may have had to dispute the trial court's disposition of the family home and, such having been the only asset of significant value, the question of marital property division is abandoned. She continues to claim, however, that the issue of maintenance has survived and she reasserts and presses her point of error contending that the trial court improperly and unjustifiably awarded gross maintenance when periodic maintenance should have been decreed. The husband counters by observing that the wife has demanded and received full payment of the maintenance adjudged and she should not now be heard to question the propriety of a judgment which she employed to her advantage and benefit in the interval while this appeal pended. Quite apparently, the issue so presented must be resolved before consideration may be given to the original questions which this appeal addressed on the earlier briefs.

Counsel informed the court that the judgment roll in this case reflects no entry showing satisfaction of the maintenance award, apparently because no requirement for such an entry was interposed as a condition for payment. Actual satisfaction of the judgment, however, is beyond dispute. Among the documents filed as a supplementary record in this case is an affidavit signed by the wife in connection with the closing of the real estate sale. There she acknowledges " * * * receipt for said full amount of gross maintenance * * * as would have been paid at the rate of $250.00 per month through September 23, 1982." The wife's counsel on argument agreed that payment of the sum in question was negotiated on the basis of it being in satisfaction of the alimony in gross award. That judgment has therefore been fully paid. By reason of this acknowledged payment, has the original contest been rendered moot? We conclude that it has.

Addressing this question, the wife first argues in a supplemental brief that none of the events which followed entry of the judgment is properly for consideration by this court because the record is limited to the content of the transcript on appeal. She suggests that the...