Wood v. Wood

• Decision Date: 24 September 1999
• Citation: 2 S.W.3d 134
• Parties: (Mo.App. S.D. 1999) Susan Wood, Respondent, v. George Wood, Appellant. 22714 0
• Court: Missouri Court of Appeals

2 S.W.3d 134 (Mo.App. S.D. 1999)

Susan Wood, Respondent, v. George Wood, Appellant.

22714

Missouri Court of Appeals Southern District

09/24/99

Appeal From: Circuit Court of Greene County, Hon. James P. Anderton

Counsel for Appellant: Kay S. Graff

Counsel for Respondent: Kay A. Van Pelt

Opinion Summary: None

Montgomery, P.J. and Prewitt, J., concur.

Robert S. Barney, Judge

This is an appeal from a judgment of the Circuit Court of Greene County, awarding Susan Wood ("Susan") the sum of $78,401.23 against George Wood ("George") arising from a joint debt to Empire Bank. George appeals from the judgment. We reverse and remand with directions.

During their marriage the parties received a "line of credit" with Empire Bank, eventually amounting to $100,000.00 ("the Empire Bank debt").¹ As security for the various loan agreements entered into by both parties and Empire Bank, Susan allowed her "Essex Street" property to stand as collateral. The parties agree that the money was borrowed in order to start and operate a business incorporated as Woodco Manufacturing, Inc. ("Woodco"). However, Woodco was not a party to any of these loan agreements.

Susan and George's marriage was subsequently dissolved by a decree of dissolution January 2, 1991. The decree of dissolution incorporated a Separation Agreement executed by the parties on November 28, 1990. The decree ordered that "the non-marital property and marital property and marital debts be and are hereby divided and allocated in accordance with the Separation Agreement."²

The Separation Agreement mentions the Empire debt primarily in two principal places. In the first instance the agreement states, inter alia, at page three:

(c) All of the outstanding and issued shares of common stock of Woodco

Manufacturing, Inc., shall remain in the joint names of the parties with right of survivorship and not as tenants in common and subject to the following additional restrictions:

(1) At such time as any and all liability of [Susan], is satisfied with respect to the indebtedness of Woodco Manufacturing, Inc., owed to Empire Bank, including any obligation on her part to guarantee such indebtedness, and release of her non-marital residence therefrom as collateral is obtained, all as provided in paragraph 9(H), page 16 hereof, such stock shall be transferred into the sole name of [George], and shall become his sole and separate property free of any ownership claim [by Susan].

The second instance, at page 16, paragraph 9(H), consists of the following, in pertinent part:

(H) It is further stipulated and agreed that [George], shall within one hundred twenty (120) months, commencing December 1st, 1990, obtain the complete and full release of [Susan], as an obligated party, including any obligation as a guarantor[,] on the indebtedness owed by Woodco Manufacturing, Inc., to Empire Bank of Springfield, Missouri, and which release shall also include the full and complete release of [Susan's] non-marital residence . . . as collateral or other security for said indebtedness. Said release may be accomplished by refinancing of said indebtedness, with substitute collateral, substitution of other guarantors, or renewal without [Susan's] name, or any other reasonable method which completely releases [Susan] thereon as well as her non-marital residence.

After the dissolution of their marriage Susan made all the payments on the Empire Bank debt.³

On April 12, 1991, a little over three months after their marriage was dissolved, the parties entered into a "Contract and Agreement" containing four provisions ("the April 12th contract"). Under the first two provisions, Susan received the "Pickwick property" and the debt associated with it, and George received the "Central property" and the debt associated with it. Additionally, the April 12th contract contained the following provisions:

3. [Susan] renounces all claims or form of ownership rights granted pursuant to the dissolution of marriage in and to, Woodco Manufacturing, Inc., and agrees further to execute any documents necessary to effectuate such transfer of rights. [George] agrees to hold [Susan] harmless and indemnify her from any and all creditors of Woodco Manufacturing, Inc.

4. [Susan] agrees to release [George] from all responsibility for any and all debts as imposed by decree of dissolution entered January 3, 1991, excepting his obligation for child support, children's medical expenses and $102.00 incurred by [Susan] on the [Central property].

The next action relevant to this appeal occurred on February 27, 1992, when Susan's attorney sent a letter to George demanding that he pay his share of the payments on the Empire debt. He refused.

On April 23, 1993, the underlying case was filed by Susan. Her petition consisted of four counts.⁴ The trial court found for Susan on her fourth count ("Count IV"), discussed in detail infra. The trial court awarded Susan $78,401.23 as "one-half of all payments made by [Susan] on note to trial and one-half of balance remaining on note as of date of trial." George appealed raising two points of trial court error, discussed below.

"In a court-tried case, such as this, the judgment of the trial court will be affirmed by the appellate court unless there is no substantial evidence to support it, it is against the manifest weight of the evidence, or it erroneously declares or applies the law." General Elec. Capital Corp. v. Rauch, 970 S.W.2d 348, 353 (Mo.App. 1998). "The trial court is free to believe or disbelieve all, part, or none of any witness's testimony." Community Title Co. v. U.S. Title Guar. Co., Inc., 965 S.W.2d 245, 249 (Mo.App. 1998). "The trial court may disbelieve testimony even when uncontradicted." Id. Further, "[w]e view the evidence and the concomitant inferences in a manner favorable to the prevailing party while disregarding all contradictory evidence." City of Beverly Hills v. Velda Village Hills, 925 S.W.2d 474, 475 (Mo.App. 1996).

The normal rules of contract construction apply to marital settlement agreements. Daily v. Daily, 912 S.W.2d 110, 114 (Mo.App. 1995). "When the language of a provision is in dispute, the court must determine the parties' intent as manifested in the document itself and not by what the parties say they intended." Id. "This is done by giving the words of the agreement their plain and ordinary meaning as understood by a reasonable and average person." Id.

The construction of a contract is generally a question of law. Stephens v. Brekke, 977 S.W.2d 87, 94 (Mo.App. 1998); see also Betz v. Fagan, 962 S.W.2d 432, 435 (Mo.App. 1998). A court will not resort to rules of contract construction to interpret a contract where the contract by its terms is unambiguous. See Missouri Consolidated Health Care Plan v. BlueCross BlueShield of Missouri, 985 S.W.2d 903, 909 (Mo.App. 1999). A contract is not ambiguous merely because parties disagree over its meaning. Jake C. Byers, Inc. v. J.B.C. Investments, 834 S.W.2d 806, 816 (Mo.App. 1992).

In his second of two points, which we discuss out of order for the sake of clarity, George claims the trial court erred and/or abused its discretion in its judgment:

because said judgment is not supported by substantial evidence, and/or is against the weight of the evidence and erroneously applies the law in that the judgment is based on allocating a debt and count IV fails to plead an equitable cause of action to divide property omitted from a dissolution action or allocate a debt and also disregards the provisions of the separation agreement . . . as well as the subsequent contract of the parties.

We immediately observe that George incorrectly sets out more than one claim of error in his second point. He complains: (a) that the judgment is not supported by substantial evidence, is against weight of the evidence, and erroneously applied the law in that the judgment is based on allocating a debt; (b) that "count IV fails to plead an equitable cause of action to divide property omitted from a dissolution action or allocate a debt"; and (c) that the judgment disregards the provisions of the separation agreement and the subsequent contract of the parties. "A statement of a point relied on . . . violates Rule 84.04 when it groups together multiple contentions not related to a single issue." Biever v. Williams, 755 S.W.2d 291, 293 (Mo.App. 1988); see also Thummel v. King, 570 S.W.2d 679, 688 (Mo. banc 1978); In re Marriage of Cohen, 884 S.W.2d 35, 37 n.1 (Mo.App. 1994); Carroll's Warehouse Paint Stores, Inc. v. Rainbow Coatings Corp., 835 S.W.2d 531, 532 (Mo.App. 1992).

Additionally, in his argument under this point, George fails to discuss any portion of his actual point, instead he sets out apparent inconsistencies in Susan's own treatment of Count IV. He argues, without supporting authority, that "[a]n examination of Count IV of Plaintiff's Second Amended Petition reveals that there is no part of the pleading that requests a contribution in equity" and that "the pleading does not state an action for breach of contract . . . ." George concludes that he "can only infer that the [trial court] is operating under the theory of contribution in the judgment rendered." Although "[c]laims of error asserted in a point relied on but not developed in the argument portion of a brief are deemed abandoned," City of Rolla v. Armaly, 985 S.W.2d 419, 426-27 (Mo.App. 1999), we shall gratuitously ascertain what cause of action Susan pled in her Count IV. See Rule 84.13, Missouri Court Rules (1999).

In Count IV of her second amended petition, Susan pled, inter alia, that the parties "executed and delivered to Empire Bank . . . their joint promissory notes entitled 'Equity Credit'"; that the "parties entered into a Separation Agreement on November 28, 1990, pursuant to a dissolution of marriage action filed by [Susan]" but the "agreement failed to divide the [$100,000.00] debt referred to in this action." Susan also pled that from the...