Wilhoit v. Wilhoit

• Decision Date: 05 May 1980
• Docket Number: No. KCD,KCD
• Citation: 599 S.W.2d 74
• Parties: Mary B. WILHOIT, Respondent, v. Wilbur B. WILHOIT, Jr., Appellant. 30502.
• Court: Missouri Court of Appeals

Page 74

599 S.W.2d 74

Mary B. WILHOIT, Respondent, v. Wilbur B. WILHOIT, Jr., Appellant.

No. KCD 30502.

Missouri Court of Appeals, Western District.

May 5, 1980.

Alden S. Lance, Savannah, Richard E. McFadin, North Kansas City, for appellant.

Mark H. Wissehr, St. Joseph, for respondent.

Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

The appeal comes from an order to reopen a dissolution proceeding to divide the marital property as directed by § 452.330. In the prior action, the court ordered dissolution on the joint petition of the spouses, made award of custody and maintenance, but no disposition of the marital property. The wife brought her Motion to Set Aside Decree on the ground the failure to divide the marital property rendered the judgment only interlocutory and invoked jurisdiction to complete the adjudication. On evidence, the court sustained the motion of the wife and, by separate hearing, made division of the marital property and entered final judgment.

The husband appeals, not from the final adjudication of the marital property, but from the antecedent determination that the original judgment in dissolution was not final. The husband contends that the spouses presented actual evidence of a property division agreement, for which judicial sanction of conscionability must be assumed in the absence of an express determination of unconscionability.

A judgment in a dissolution proceeding which neglects to decide rights of the spouses to the marital property and make a just division remains interlocutory and open for final judgment as to that element of proceeding. Pendleton v. Pendleton, 532 S.W.2d 905, 906(1-3) (Mo.App.1976); State ex rel. Horridge v. Pratt, 563 S.W.2d 168, 170(1) (Mo.App.1978). We determine the original decree failed to adjudicate the property rights between the spouses, either by judicial division (§ 452.330) or by a separation agreement found nonunconscionable (§ 452.325) and so remained amenable to a completed judgment.

The contention of the husband of a separation agreement between the spouses, proven and implicitly approbated, rests on brief testimony given on the original petition for dissolution:

(Testimony by the wife)

Q. In your petition, ¹ you talk about a property or separation agreement. You and Mr. Wilhoit didn't actually enter into a separation agreement, did you?

A. No, sir.

Q. You have divided your property by deed, though, have you not?

A. We have.

Q. (The Court) You said you have divided up your property?

A. Yes.

Q. Isn't it true the property being divided is a small farm, 37 acres with a dwelling house on it?

A. Yes.

Q. And Mr. Wilhoit is retaining that under your property division?

A. Yes.

Q. Subject to a mortgage that you are going to have on it, and also a mortgage that another loan company has?

A. Yes.

(Testimony by the husband)

Q. You are in agreement that the property has been divided satisfactorily?

A. Yes.

The judgment entered on the evidence makes no reference to a "separation agreement," or of a judicial sanction given or withheld or to a division of marital property. Other than to adjudge a weekly maintenance to the wife, that the husband assume indebtedness jointly incurred during the marriage, and an assessment to clothe the children, the judgment was indifferent to the property of the marriage.

The provision of § 452.325 for a property disposition by separation agreement of the spouses preempts a judicial division of the marital property under § 452.330, but only when the contract is by free assent ² and treats with the full property ³ and then gains the respect of the court for enforcement in the decree of dissolution after consideration of the total economic circumstances of the contractor spouses. ⁴ It is only a written separation agreement for the disposition of the spousal property that a court may entertain for determination of nonunconscionability and enforcement as a judgment. § 452.325.5; Turpin v. Turpin, 570 S.W.2d 831, 834(2, 3) (Mo.App.1978).

The husband concedes that the disposition of the property between the spouses was by oral agreement, but contends nevertheless that neither the want of a writing nor of a judicial declaration of nonunconscionability aborts judgment. The written form of agreement, he says, was permissive at the time and so remains valid now, and the fact of nonunconscionability, although not declared, must be assumed as settled by the judgment under Rule 73.01.

The terms of § 452.325 that spouses, attendant to separation or dissolution, "may enter into a written separation agreement" was given effect (in Turpin v. Turpin, supra, l.c. 835) to impose the condition of written agreement to the operation of that section. The provision means, simply, that spouses may settle their property rights between them by agreement rather than by the method of judicial division under § 452.330 but if they do, the expression of that assent must be written. The rationale is to avoid dispute and manifests once again a transcendent purpose of the Dissolution of Marriage Act to avoid litigation beyond the dissolution proceeding, itself. Turpin v. Turpin, supra, l.c. 834(2, 3); Corder v. Corder, 546 S.W.2d 798, 804(4) (Mo.App.1977). It is fanciful to say, as does the husband, that at the time of the original proceeding the spouses understood the statute to tolerate oral agreement of property rights and that the peremptory sense of the enactment for a written agreement was not known before the decision in Turpin and so the judgment entered was a valid adjudication. The statute was in effect at the time of the original proceeding and governed the exercise of right encompassed by its terms. A statute does not require judicial precedent for efficacy. Nor does Turpin purport to remove a cloud to make clear sense of the statute, but observes rather (l.c. 835): "The terms of the statute are plain and unambiguous that the separation agreement must be in writing and there is no room or need for judicial interpretation here." The requirement for written agreement was operative before Turpin as since.

The deficiency of the original judgment as a final determination of the marital property, either by agreement under § 452.325 or by judicial division under § 452.330, goes far beyond the lack of a writing. The judgment failed that purpose under § 452.325 because the full marital property was not before the court, nor was consideration given to the full circumstances of the spouses, nor was the agreement of disposition given sanction by the court as nonunconscionable all prerequisite to judgment under that statute; In re Marriage of Bequette, supra, l.c. 530(1); LaFountain v. LaFountain, supra, l.c. 848(1, 2). The judgment failed as a judicial division of the marital property under § 452.330 simply because the decree does not catalogue the property allocated to each by description and value. Ravenscroft v. Ravenscroft, 585 S.W.2d 270, 274(6) (Mo.App.1979); Hopkins v. Hopkins, 597 S.W.2d 702 (Mo.App. 1980).

The contention of the husband that the full marital property was before the court so that the judgment entered on the oral agreement was fully informed distorts the proof. There was evidence as to the complete property ownership and transactions between the husband and wife, but only on the second hearing after the first adjudication was reopened to complete the proof for final judgment of judicial property division under § 452.330. It was that very lack of proof which aborted possibility of judgment in the first proceeding.

The husband contends that want of written agreement or other formal requisites for judgment under § 452.325 notwithstanding, the entry of decree imports that the necessities of statute were met. The husband asserts the principle that a trial court has no duty to enter formal findings of fact absent request and cites the cognate text of Rule 73.01 that: "(a)ll fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Thus, concludes the husband, the adjudication on the first proceeding does not fail as a judgment for want of determination that the separation agreement was not unconscionable because that issue was presumptively found conformable to decision.

That theme, which percurs the spate of dissolution of marriage decisions, ⁵ confuses the fact-determination function of a court with the essentials of judgment specifically a judgment for the disposition of the marital property by agreement or by judicial division rendered and enforceable under § 452.325 and § 452.330. A finding of fact precedes judgment, and constitutes an opinion for the ground of judgment (Rule 73.01), but is not a final determination of the rights of the litigants in the subject matter of the action. State ex rel. St. Louis, K. & N.W. Ry. Co. v. Klein, 140 Mo. 502, 41 S.W. 895, 897 (1897). Only a judgment is that. Rule 74.01. A finding of fact does not even affect the validity of judgment (Cochran v. DeShazo, 538 S.W.2d 598, 600(5) (Mo.App.1976)) so that, if erroneously found, does not prevail against the judgment. Oliver v. Fisher, 430 S.W.2d 611, 613(2) (Mo.App.1968); 1 Freeman on Judgments, § 3 (5th ed. 1925). The efficacy of judgment, therefore, does not reside in any prefatory statement of reason or recital but in the mandate of the decree. Warren v. Drake, 570 S.W.2d 803, 807(3) (Mo.App.1978).

The court on the disposition of the marital property by an agreement of the spouses under § 452.325 has no duty to find the contract nonunconscionable as a matter of fact but has the clear duty to pronounce the terms nonunconscionable as a matter of judgment. The terms of separation agreement simply do not bind a court unless "the decree . . . state that the court has found the . . . terms not unconscionable." § 452.325.4(2) (Emphasis added.) The statute describes, not a technical impedimentum of decision, but an essential of final...