Adamson v. Adamson

958 S.W.2d 598, 1998 Mo. App. LEXIS 37, 1998 WL 30649
CourtMissouri Court of Appeals
DecidedJanuary 9, 1998
DocketNo. 21485
StatusPublished

This text of 958 S.W.2d 598 (Adamson v. Adamson) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adamson v. Adamson, 958 S.W.2d 598, 1998 Mo. App. LEXIS 37, 1998 WL 30649 (Mo. Ct. App. 1998).

Opinion

SHRUM, Judge.

Kimberly Ann Adamson (Ex-Wife) appeals from a judgment that quashed her request for an income assignment and terminated her right to maintenance from John Elza Adam-son (Ex-Husband) as per their separation agreement and decree of dissolution. The trial court’s adjudication is based on a finding that Ex-Wife was “eohabitating [sic] with an unrelated adult.” This court affirms.

FACTS

When their marriage was dissolved in August 1995, Ex-Husband agreed to pay Ex-Wife monthly maintenance “for a period of two years ... or until [Ex-Wife] ... cohabi-tates [sic] with an unrelated adult ... whichever [event] occurs first.” That agreement was incorporated into their decree of dissolution.

In December 1996, Ex-Wife filed an “Application To Effect Assignment.” As part of this filing, Ex-Wife filed documents claiming Ex-Husband owed over $3,500 in delinquent maintenance. Ex-Husband moved to quash Ex-Wife’s request, alleging that he no longer owed maintenance because Ex-Wife had violated the cohabitation clause.

A hearing on these motions established that Ex-Wife had been dating Douglas Scott Jander (“Boyfriend”) since September 1995. During their relationship, Boyfriend worked at Columbia, Illinois, for Phillips Environmental Services Corp. As “construction manager” for that firm, Boyfriend was an overseer of “out-of-town work,” i.e., “tank removals.” This job required Boyfriend to travel ‘Very extensively” in 1993 [599]*599and 1994, but less in 1995 and 1996. Boy-Mend said that he now traveled “a third to a half’ of the tíme. Ex-Wife said BoyMend traveled “some” and that his job took him “all over” the country. At the time of the hearing, BoyMend stayed with his mother in Kirkwood, Missouri, and commuted to his place of work in Columbia, Illinois, during the work week when he was not traveling.

The relationship between Ex-Wife and BoyMend developed to the point that they were with each other except when he was working and unable to commute to Springfield on a daily basis. They began spending all weekends together and vacationed together, once for “10, 11 days” in Florida and another time in Arkansas. In June 1996, Ex-Wife and BoyMend bought a house in Springfield, Missouri, taking title as joint tenants. They borrowed $72,033 in order to purchase this property. The deed of trust given as security for the loan recited that the borrowers (Ex-Wife and BoyMend) “shall occupy, establish and use the Property as Borrower’s principal residence within sixty days after execution of this Security Instru-ment_” After buying the home, Boy-Mend used a week of his vacation to help Ex-Wife move into their new home. Moreover, he personally helped in making repairs to the home, which included building a closet in the basement.

As early as June 1996, BoyMend and Ex-Wife were having sexual relations together, often in their newly acquired home. Asked if she and BoyMend had sexual relations “on a frequent basis or just a regular basis,” Ex-Wife answered: ‘Yes.” Although BoyMend and Ex-Wife denied they were engaged or planned marriage, they went “together” to buy her a “promise ring.” As Ex-Wife explained it, she sold a ring “[f]rom my previous marriage” but used the diamond therefrom in the promise ring. Each paid $500 toward this ring. Ex-Husband testified that Ex-Wife told him that she and BoyMend intended to marry but this had not yet happened because “Scott still had [some jobs] to do in St. Louis.”

Testimony about where BoyMend and Ex-Wife spent their weekends conflicted. Ex-Wife claimed BoyMend was at their house in Springfield “usually about four or eight times a month[,]” arriving “late Friday” and leaving “late Sunday.” She indicated that he was in Springfield probably “60-40,” meaning he came to Springfield on sixty percent of the weekends and she went to St. Louis on the other weekends. However, BoyMend stated that “in ... the last three months,” Ex-Wife visited him in St. Louis only “once or twice.”1 Ex-Husband testified that for the past “three or four months” he “kept tabs” on when BoyMend was in Springfield and found him there “every weekend.”

Before BoyMend met Ex-Wife, he traveled extensively and stayed at his mother’s condominium when he “was in town between projects.” That arrangement continued after he started dating Ex-Wife, except that he began spending his weekends with Ex-Wife. At the time of the hearing, he received all of his mail at the Kirkwood address, he was registered to vote in the County of St. Louis, and he paid personal property tax in St. Louis County. He paid none of Ex-wife’s living expenses nor did he assist with the monthly mortgage payments on their jointly-owned house.

The trial court found that Ex-Wife and BoyMend were cohabiting within the meaning of the decree and terminated Ex-Husband’s obligation to pay maintenance as of June 1996. Accordingly, it quashed Ex-Wife’s request for an income assignment. This appeal followed.

STANDARD OF REVIEW

We review this case under the standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). ‘We will affirm the trial court’s judgment unless that judgment is against the weight of the evidence, erroneously declares the law, or erroneously applies the law.” Id. at 32[1], “This court accepts as true the evidence and inferences favorable to the trial court’s judgment.” Barr v. Barr, 922 S.W.2d 419, 420[1] (Mo.App.1996).

DISCUSSION AND ANALYSIS

Point I: Plain And Ordinary Meaning Of The Term “Cohabit”

Ex-Wife’s first point on appeal charges that the trial court failed to correctly [600]*600apply the law or misapplied the law when it quashed her request for income assignment. She argues that in finding that she and Boyfriend were “cohabiting,” the trial court failed to apply the plain and ordinary meaning of that term. We disagree.

“The normal rules of contract construction apply to settlement agreements.” Daily v. Daily, 912 S.W.2d 110, 114[9] (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. at 114[10]. “This is done by giving the words of the agreement their plain and ordinary meaning as understood by a reasonable and average person.” Id. at 114[11],

The court of appeals has determined the intent expressed in a similar agreement. In Barr, 922 S.W.2d at 419, the parties agreed that husband’s maintenance obligation would terminate “upon wife’s ‘conjugal cohabitation’ with [an] adult male for a period of 60 days....” Husband moved for relief from his maintenance obligation based on this provision. The trial court sustained husband’s motion. On appeal the western district affirmed, saying:

“[Wife] points to evidence that [boyfriend] had a separate residence in Tucson, did not commingle funds with [wife] and did not contribute to household expenses. She argues that to establish ‘conjugal cohabitation’ requires more than occasional or even frequent overnight visits, but circumstances such that a court can view the relationship as a substitute for the married state, or as analogous to marriage.”
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Related

Daily v. Daily
912 S.W.2d 110 (Missouri Court of Appeals, 1995)
Murphy v. Carron
536 S.W.2d 30 (Supreme Court of Missouri, 1976)
Willyard v. Willyard
719 S.W.2d 91 (Missouri Court of Appeals, 1986)
Ritter v. Ritter
920 S.W.2d 151 (Missouri Court of Appeals, 1996)
Barr v. Barr
922 S.W.2d 419 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
958 S.W.2d 598, 1998 Mo. App. LEXIS 37, 1998 WL 30649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adamson-v-adamson-moctapp-1998.