Deborah Pagoria v. Jerrold Pagoria, Personal Representative of the Estate of Nick S. Pagoria

• Court: Missouri Court of Appeals
• Decided: July 2, 2024
• Docket: ED111518
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

DEBORAH PAGORIA, ) No. ED111518 ) Appellant, ) ) Appeal from the Circuit Court ) of St. Louis County vs. ) 22SL-PR01594 ) ) Honorable Mary E. Ott JERROLD PAGORIA, ) Personal Representative of the Estate of ) Nick S. Pagoria, ) ) Respondent. ) FILED: July 2, 2024

OPINION

Deborah Pagoria (“Appellant”) appeals from the St. Louis County Probate Court’s

judgment denying her claim against the Estate of Nick S. Pagoria (“the Estate”). The court

determined Appellant breached the relevant paragraph of a settlement agreement between herself

and her ex-husband, Nick S. Pagoria (“Decedent”), and that the paragraph Appellant breached

was the same paragraph upon which she based her claim against the Estate. The court concluded

that the settlement agreement was a contract between the parties, and that Appellant failed to

perform or tender performance as required in the settlement agreement. We affirm the judgment

of the probate court.

Factual and Procedural Background Appellant and Decedent were divorced in August 2013, approximately ten years before

Decedent’s death. As part of the Judgment of Dissolution of Marriage, both parties entered into a

Property Settlement and Separation Agreement (the “Agreement”), which was incorporated into

the Judgment of Dissolution and approved by the court. Pursuant to the Agreement, each party

was to execute and file a beneficiary deed for his or her respective residential real property in

favor of the other. Specifically, Section 3 provides that:

The parties agree to each execute and file for record a beneficiary deed upon their respective residential real properties presently in their sole and individual respective names, whereby upon the death of one of the parties, the survivor of them shall become the owner of the other’s real property.

Neither party ever did so.

Despite both parties having breached Section 3 of the Agreement, Appellant filed a claim

against the Estate asking the probate court to enforce the Agreement and transfer to her the real

estate which was the Decedent’s home and is now part of the Estate. On January 12, 2023, the

probate court held a hearing on Appellant’s claim and thereafter entered judgment in favor of the

Estate and against Appellant. 1 This appeal follows.

Standard of Review

“A court-tried probate case is reviewed under the standard of Murphy v. Carron, 536

S.W.2d 30 (Mo. banc 1976). Under that standard, the probate court judgment will be sustained

‘unless there is no substantial evidence to support it, unless it is against the weight of the

evidence, unless it erroneously declares the law, or unless it erroneously applies the law.’” In re

Estate of Schooler, 204 S.W.3d 338, 342 (Mo. App. W.D. 2006) (quoting Murphy, 536 S.W.2d

at 32). “Substantial evidence is evidence that, if believed, has some probative force on each fact

that is necessary to sustain the circuit court’s judgment.” Ivie v. Smith, 439 S.W.3d 189, 199

1 The Honorable Commissioner William J. Gust wrote for the probate court.

2 (Mo. banc 2014). “The against-the-weight-of-the-evidence standard serves only as a check on a

circuit court’s potential abuse of power in weighing the evidence, and an appellate court will

reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong.” Id. at

206. In determining whether the judgment is supported by substantial competent evidence, “we

view the evidence and reasonable inferences from the evidence in the light most favorable to the

judgment, disregard all evidence and inferences contrary to the judgment, and defer to the trial

court’s credibility determinations.” Estate of Briggs, 449 S.W.3d 421, 425 (Mo. App. S.D.

2014). “A claim that the trial court erroneously declared or applied the law is reviewed de novo.”

Id.

Discussion

Appellant raises two points. In Point I, she argues the probate court erroneously declared

and applied the law in denying her claim because Respondent collaterally attacked the 2013

Judgment of Dissolution, and it was therefore error for the court to conclude “that the judgment

was merely a contract subject to revision, enforcement, or discretion.” In Point II, Appellant

argues the probate court “ruled against the weight of the evidence, in that the court found that

there was a contractual ‘performance’ issue, rather than determining if the judgment was a valid

judgment.” Appellant is incorrect on both points.

The parties entered into an Agreement, which was executed by both parties and

incorporated into the 2013 Judgment of Dissolution. The probate court found the Agreement to

be a contract and that Appellant and Decedent mutually agreed in Section 3 of the Agreement to

file beneficiary deeds on their separate homes, deeding each home to the other. But neither party

did so. Instead, both parties breached Section 3 of the Agreement. Thus, the court concluded this

3 provision was not enforceable by Appellant against the Estate. The court’s conclusion is

supported by the record and the law.

At trial, the fact that neither party filed a beneficiary deed between the time of the divorce

and the Decedent’s death was undisputed. Also undisputed and confirmed by Appellant’s trial

testimony was that she sold her home, did not file a beneficiary deed subsequent to the sale, and

then purchased a new home. She admitted at trial and again before this Court that she did not

intend to file a beneficiary deed. Nevertheless, Appellant filed a probate claim upon Decedent’s

death. As Respondent correctly points out, Appellant “avoided [the] burden of filing the deed and

the risk of her heirs not receiving that property, but then only acted once the Decedent had died.”

No party “should be allowed to assume the inconsistent position of affirming a contract…by

claiming its benefits, and disaffirming it…by avoiding its obligations or burdens. Dubail v.

Medical West Bldg. Corp, 372 SW.2d 128, 132 (Mo. 1963).

Additionally, Section 3 of the contract is not enforceable as both parties mutually

breached its terms by failing to file the beneficiary deeds. Because neither party honored the

terms of the contract, and in fact demonstrated no intention of doing so, there existed no

consideration for Section 3 of the contract. In Sears v. Easter Seals Midwest, 563 S.W.3d 111

(Mo. banc 2018), the Missouri Supreme Court stated that an agreement lacks legal consideration

if one party unilaterally divests itself of any obligation. “A promise is illusory when one party

retains the unilateral right to amend the agreement and avoid its obligations.” Id. at 116. Here,

both parties divested themselves of their previously agreed-upon legal obligations, thus rendering

Section 3 unenforceable and void.

Finally, the probate court properly allowed evidence that Appellant had breached the

contract and should not benefit therefrom. Contrary to Appellant’s contention, allowing this

4 evidence did not amount to a “collateral attack” on the divorce judgment. A “collateral attack” is

any attempt to impeach a judgment in a proceeding that was not instituted for the express

purpose of annulling that judgment. See Timmons v. Timmons, 139 S.W.3d 625, 629 (Mo. App.

W.D. 2004). The underlying judgment may be challenged in a collateral proceeding only if it was

void for lack of personal or subject matter jurisdiction or due process. See Blanchette v.

Blanchette, 476 S.W.3d 273, 278 (Mo. banc 2015). Here, the court was resolving a dispute

regarding an alleged breach of the terms of the Agreement, not allowing a collateral attack on the

2013 Judgment of Dissolution. The court correctly concluded that Appellant cannot enforce

Section 3 of the Agreement now, more than nine years after it was signed, when she herself

breached the Agreement.

Given that neither party filed a beneficiary deed, and thus both parties mutually breached

the Agreement, the contested property belongs to the Estate. The probate court’s judgment is not

against the weight of the evidence, and the probate court neither erroneously declared nor

applied the law. In re Estate of Schooler, 204 S.W.3d at 342. Points I and II are denied.

Conclusion

The judgment of the probate court is affirmed.

Cristian M. Stevens, J.

Robert M. Clayton III, P.J. and Philip M. Hess, J., concur.