Duncan v. Duncan

687 S.W.2d 648, 1985 Mo. App. LEXIS 3109
CourtMissouri Court of Appeals
DecidedMarch 5, 1985
DocketNo. 46990
StatusPublished

This text of 687 S.W.2d 648 (Duncan v. Duncan) 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
Duncan v. Duncan, 687 S.W.2d 648, 1985 Mo. App. LEXIS 3109 (Mo. Ct. App. 1985).

Opinion

STEWART, Judge.

The trial court dissolved the 28 year marriage of the parties, made division of marital property, set aside separate property and made an award of maintenance to wife over a period of three years. The three children born of the marriage were emancipated. We dismiss the appeal and remand for further proceedings.

On appeal wife complains that the trial court erred in: (1) entering a decree that is so indefinite and uncertain as to be unenforceable; (2) failing to determine the status of and dispose of all of the marital property; (3) dividing the marital property so as to be unduly and heavily weighed in favor of the respondent husband; and (4) limiting the duration of maintenance.

Husband was in construction related businesses including grading, construction and a “Reddi Mix” concrete business. These businesses had each been incorporated as Lloyd K. Duncan, Inc., Duncan Bridge, Duncan Grading and 76 Materials Company. The charters of these corporations were forfeited January 1, 1979, for failure to pay the corporate franchise tax. Husband has continued to operate the businesses.

Husband testified that he also owned a half interest in a corporation referred to as Meramec Materials. There was some confusion on the interests involved in the latter corporation. Mr. Michael Harmon testified that he held all of the stock in Meramec Materials; that stock was authorized for husband but not paid for. Money was borrowed for Meramec from the bank by Harmon with husband and wife in this case as guarantors. There is an indication of transactions between Meramec and 76 Materials but the question of who owes who what was not clarified.

From the evidence in the case husband and wife had only nominal income. When husband required funds for his personal needs he took money from the various companies. When asked whether he could afford to pay maintenance of a certain sum he replied that it all depended on how hard he wanted to work. Wife had worked in the business for some period of time. During this time she obtained two checks for $500 each identified as exhibits A and B in addition to her salary. When this subject arose there were two other exhibits intro[650]*650duced into evidence but there was no explanation and the exhibits are not before us. Just prior to trial wife worked part time for a fast food restaurant at $3.35 per hour.

There was evidence of misconduct on the part of each of the parties.

The court granted wife maintenance of $150 per week for two years and $100 per week for one year. It awarded her marital property consisting of a car valued at $1500, household furnishings of $2330, $10,000 as her share of the business properties and one half of the net proceeds of the marital home. She was also awarded $1500 attorney’s fee and allowed to live in the marital home until it is sold.

Husband was awarded $1860 in household furnishings, all of the business assets totalling $607,375 which included real property worth $200,000. The court also awarded husband one half interest in the marital home and ordered husband to pay the debts in the sum of $397,529.84 subject to modification as discussed hereafter. Costs were assessed against husband.

We must consider first the question of our jurisdiction. The parties do not question the determination that the marriage is irretrievably broken. We consider the marriage to be dissolved as of the date of the decree. Brown v. Brown, 537 S.W.2d 434, 438 (Mo.App.1976); In re Marriage of Wineland, 609 S.W.2d 464, 467 (Mo.App.1980). The issue is whether there was a failure to determine the status of husband’s interest in Meramec Materials and whether there was a failure to make a proper disposition of that interest.

Husband clearly and unequivocally testified that he had a one-half interest in Mera-mec Materials. Wife also testified that husband had an interest in the company but did not know the extent of the interest. Michael Harmon who was called as a witness by husband, testified that he was the sole stockholder of Meramec Materials; that stock was authorized for husband but it wasn’t “paid for;” that the account is carried on the books of the company as a receivable; that he was not certain as to what husband owed him for material or what Meramec owed husband for work husband did for the company. He also testified that money for the corporation was borrowed by him with his home as security and the bank had husband and wife sign “as personal.” Equipment of the husband and wife is being used by Mera-mec in its business.

Husband did not attempt to explain his testimony as to his interest in Meramec. When a party in full possession of his mental faculties testifies unequivocally and understandingly to a material fact peculiarly within his own knowledge it has the effect of a judicial admission. He is precluded from relying on any testimony to the contrary unless he gives some reasonable explanation of his previous statement as having been the result of mistake, oversight, lapse of memory or misunderstanding. Absent such an explanation the party may not have the benefit of any testimony to the contrary irrespective of the source. Jockel v. Robinson, 484 S.W.2d 227, 231 (Mo.1972).

Based upon husband’s testimony he has a one-half interest in a going business. The value of the business has not been established and that interest has not been distributed. It follows that the jurisdiction of the trial court has not been exhausted and this appeal must be dismissed. Anspach v. Anspach, 557 S.W.2d 3, 6 (Mo.App.1977).

Wife contends that paragraph 10 of the decree is so indefinite and uncertain as to be unenforceable. We shall discuss this issue because it is jurisdictional in nature.

To be fully understood paragraph 10 and paragraph 11 must be read together. The essential portions of those paragraphs read as follows:

10. The Court finds that the following are marital debts and orders them paid by the Respondent, who shall hold the Petitioner harmless therefrom:
CREDITOR BALANCE
Bank of Washington $ 57,363.70
Bank of Washington 20,124.08
County of St. Louis 10,655.57
[651]*651CREDITOR BALANCE
Kenton & Mildred Duncan 25,000.00
Simpson Sand & Gravel 15,000.00
CIT Corporation 80,000.00
Internal Revenue Service 3,759.52
Erb Equipment Company 1,500.00
Winter Brothers 6,000.00
Mr. & Mrs. Gus Mueller 4,890.00
St. Louis County Bank 173,236.97
Respondent shall not, however, be required to pay that portion of the debt to the St. Louis County Bank which represents a second deed of trust on the marital home. The deeds of trust on the marital home shall be governed by paragraph 11, infra. However, if no definite and certain portion of the sum of money owed to the St.

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Related

In Re Marriage of Wineland
609 S.W.2d 464 (Missouri Court of Appeals, 1980)
Anspach v. Anspach
557 S.W.2d 3 (Missouri Court of Appeals, 1977)
Brown v. Brown
537 S.W.2d 434 (Missouri Court of Appeals, 1976)
Ravenscroft v. Ravenscroft
585 S.W.2d 270 (Missouri Court of Appeals, 1979)
Jockel v. Robinson
484 S.W.2d 227 (Supreme Court of Missouri, 1972)

Cite This Page — Counsel Stack

Bluebook (online)
687 S.W.2d 648, 1985 Mo. App. LEXIS 3109, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duncan-v-duncan-moctapp-1985.