Wynn v. Wynn
| Decision Date | 20 October 1987 |
| Docket Number | No. 52435,52435 |
| Citation | 738 S.W.2d 915 |
| Parties | Joan WYNN, Petitioner-Respondent, v. Donald WYNN, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Mark Kruger, Clayton, for respondent-appellant.
W. Morris Taylor, Clayton, for petitioner-respondent.
Donald Wynn (husband) appeals from a decree of dissolution of marriage from Joan Wynn (wife). We affirm in part and reverse in part.
Husband and wife were married in September 1973 and separated in January 1985. During the marriage, husband was employed primarily as a salesman. His yearly income was approximately $30,000. Wife was also employed outside of the home as a temporary office worker. Her annual income was over $20,000. There were two children born of the marriage. They were five and eight years of age at the time of dissolution. They had attended the same private school since they were in preschool.
In 1984, husband purchased a 10 percent ownership in the company for which he worked. To accomplish this, husband and wife borrowed $40,000, signing a note and second deed of trust on their home for that amount. The marital home was valued at $130,000. Husband used $30,000 to purchase stock and loaned the company $10,000, receiving a note from the company for that amount.
At the time of this transaction, husband and wife were experiencing marital difficulty. They executed a "Waiver" which provided in pertinent part:
1. For and in consideration of Wife consenting to a certain loan on the parties' residence at 15991 Meadow Oak Drive, Chesterfield, Missouri 63017, husband hereby agrees that in the event a petition for dissolution of marriage is filed within the next two years from the date of this agreement, that he will make no additional claim on any of the equity in said real estate, as and for marital property, and that he will further agree that if a petition for dissolution is filed within said two year period, he will waive any and all equity in said residence.
2. Wife hereby agrees that she will, if a petition for dissolution of marriage is filed within the next two years, not make any claim against any stock ownership of Husband in Prestige Auto Sound, Inc. as and for marital property.
3. Wife and Husband both agree that in the event of a petition for dissolution being filed within the next two years of the date of this agreement, that any and all notes payable by Prestige Auto Sound, Inc. to Husband and Wife shall be transferred to Wife, with Husband making no claim that same is marital property.
At the time of trial, husband's stock in the company was worthless.
Shortly after the separation, husband's company experienced financial difficulty and husband lost his job. He was unemployed for about one year. He received job offers during that time, but held out for a "good job." He lived with his girlfriend who helped support him. He also collected unemployment compensation and worked for his brother as a bartender, allegedly for no salary. He did not, however, pay any child support or make any payments on the first mortgage pursuant to a pendente lite order. He was $11,295 in arrears on these payments at the time of trial.
While he was, by his testimony, without income, husband secreted money away in two bank accounts. In addition, he received and kept for himself over $1,650 in payments from his company on the $10,000 note. He also charged debts against the note. As a result, the note was devalued to $6,500. At the time of trial, he had just completed a training program to sell insurance, but was receiving no salary.
The decree divided the marital property and debts as follows:
TO WIFE
-------
PROPERTY VALUATION
-------- ---------
Personal property -- *
Marital home $130,000
Jewelry 9,550
1981 Oldsmobile -- *
Bank Account 25
-------------
$139,575
DEBTS
-----
First deed of trust on house $ 61,383
Debt on Oldsmobile 3,083
One-half of certain debts 3,186
-------------
$ 67,652
TO HUSBAND
----------
PROPERTY VALUATION
-------- ---------
Personal and furniture $ -- *
Personal property 3,600
Bank Account 316
Insurance policy 22
$10,000 Note 0
Stock of company 0
-------------------------------
$ 3,938
DEBTS
-----
Second Mortgage $ 40,000
One-half of certain debts 3,186
Dental bill 196
-------------------------------
$ 43,382
*--Indicates that the court placed no valuation on this item.
Primary custody and child support of $200 per month per child were awarded to wife. The court also ordered husband to pay a portion of wife's attorney's fees in the amount of $4,100 and to maintain a life insurance policy of $100,000 with his minor children designated as beneficiaries of the proceeds.
In his first point, husband claims that the trial court erred in ordering him to pay the second mortgage on the marital home and in awarding him the note payable by his company because such orders contravened the express terms of the Waiver signed by both parties.
The Waiver does not explicitly refer to the repayment of the note and second deed of trust on the marital home. Paragraph 1 of the Waiver states that husband "will make no additional claim on any of the equity ... [and] will waive any and all equity in said residence." (emphasis added). The wording of the agreement appears ambiguous since it is reasonably susceptive of different constructions. See, e.g., Berman v. Berman, 701 S.W.2d 781, 788 (Mo.App.1985).
To give construction to an ambiguous contract which will reflect the parties' intent, the court can consider extrinsic evidence, including the circumstances surrounding the execution of the contract and the interpretation given to the contract by the parties. Wilson v. Bob Wood & Assoc., Inc., 633 S.W.2d 738, 747 (Mo.App.1981); Berman, Id. The extrinsic evidence, however, may not vary or contradict the terms of the contract. Wilson, 633 S.W.2d at 748.
Here, each party testified, without objection, concerning their intent in drafting the Waiver and each interpreted Paragraph 1 differently. By failing to object to the parole evidence, the parties tacitly conceded an ambiguity. Wife stated that the intent of the Paragraph 1 was to give the house and the responsibility for the repayment of the first mortgage to her and to give the responsibility for repaying the second mortgage to husband. In return for wife's waiving any interest in husband's stock (Paragraph 2), husband waived any interest in the equity in the marital home. Husband testified as follows:
At that time, we felt that half of the equity was mine, and half of the equity was [wife's]; and that, if I chose to get into the business venture and procure monies with a second deed on the house, that that $40,000 that was half mine would be used as the loan for the second.
On appeal, husband contends that the language of the agreement supports the proposition that wife was responsible for repaying the note and second deed of trust on the house.
The trial court found that "the intention of the parties when they took out a second mortgage on the home was that [husband] should bear the expense of said mortgage as he was to benefit from any appreciation in the stock." Obviously, the trial court believed wife's testimony and rejected husband's testimony. As trier of fact, it is the function, indeed the duty, of the trial court to decide the weight and value to be given to the testimony of any witness. On appeal, we view the evidence in a manner favorable to the decree and disregard contradictory evidence. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). We defer to the trial court even if the evidence could support a different conclusion. Id.
Husband borrowed $40,000 against the equity in the marital home to invest in a business. We assume that he believed that the company would prosper and that the stock would increase in value. As consideration for wife's signing a second deed of trust which encumbered the family home, husband gave up any right to the equity of that home and wife gave up any claim on husband's stock, no matter how much either the stock or the home increased in value. Husband got the immediate benefit of having the money to buy into a business and wife incurred an additional liability on the promise that husband would repay the loan in the future. In light of the fact that husband made the decision as to the use of the $40,000 loan proceeds, he cannot now complain that the stock he purchased with that money is worthless. See, e.g., Mills v. Mills, 663 S.W.2d 369, 373 (Mo.App.1983).
It is also necessary to analyze what the wife was actually awarded as marital property. Wife did not receive $40,000 in cash and husband did not pay out $40,000. Wife has actually...
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