Hale v. Robertson

60 S.W.3d 686, 2001 Mo. App. LEXIS 1750, 2001 WL 1151193
CourtMissouri Court of Appeals
DecidedOctober 1, 2001
DocketNo. 23867
StatusPublished
Cited by5 cases

This text of 60 S.W.3d 686 (Hale v. Robertson) 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
Hale v. Robertson, 60 S.W.3d 686, 2001 Mo. App. LEXIS 1750, 2001 WL 1151193 (Mo. Ct. App. 2001).

Opinion

PREWITT, Judge.

David William Robertson (“Appellant”) appeals from a judgment entered August 17, 2000 in favor of Betty L. Hale, personal [688]*688representative of the estate of Brenda J. Robertson, (“Respondent”) finding an ante-nuptial agreement executed by Appellant and Brenda J. Robertson (“Decedent”) valid and enforceable, thereby barring Appellant as surviving spouse from receiving any marital rights in Decedent’s estate. Prior to Respondent filing her petition, Appellant filed an election as surviving spouse, including petition for share of omitted spouse and applications as surviving spouse for exempt property, family, and homestead allowances.

Decedent and Appellant met in 1996, were engaged in early 1997, and married on April 19, 1997. On March 16, 1996, Decedent executed a will, leaving the residuary of her estate to her parents. The will was never modified or replaced prior to Decedent’s death on December 20, 1998.

Prior to the marriage Appellant informed Decedent of his difficulties with the Internal Revenue Service (IRS) and they discussed protecting Decedent’s assets through “paperwork” Decedent would have prepared. Four days prior to the marriage, Decedent met with her attorney; he prepared the ante-nuptial agreement and Decedent signed it. After signing the agreement at her attorney’s office, Decedent contacted Appellant and they met at her accountant’s office where Appellant signed the document. Appellant admitted at trial that he did not read the document before signing it nor did he consult with an attorney regarding the document’s contents or consequences. Appellant neither received a copy of the document (until after Decedent’s death) nor did he request one.

After the marriage, various items (including a boat) were purchased by Decedent for Appellant and remain in his possession, yet were titled in Decedent’s name because of Appellant’s debt to the IRS. Within a few months following the marriage, a business called Robertson Construction was formed, in which Decedent was owner and Appellant primary employee. Following Decedent’s death, Appellant retained possession of equipment and vehicles associated with the business.

At trial Appellant admitted to familiarity with signing contracts, having signed at least two contracts on behalf of Robertson Construction totaling over $200,000. With regard to the construction contracts, Appellant had taken the time to read them before signing and expected to be bound by provisions in those contracts, regardless of whether or not he had read them. Appellant has a tenth-grade education and Decedent received training as a registered nurse.

The ante-nuptial agreement is eight pages in length and includes Schedule 1, which lists items of real and personal property owned by Decedent. The agreement contained no listing of property owned by Appellant. Decedent’s attorney testified that he had originally prepared the agreement to include two schedules of property listings (one for Decedent and one for Appellant), but that the final agreement contained only a listing of Decedent’s property because Decedent had noted that Appellant had no items he wished to list. At the time of the execution of the agreement, Appellant had some property, including a pick-up and construction materials/equipment.

Schedule 1 of the ante-nuptial agreement was not an all-inclusive list of Decedent’s property. Missing were two bank accounts (one business and one personal) held by Decedent that cumulatively maintained balances over $100,000. However, both of these accounts were payable on death, one to each of decedent’s parents, and the accounts’ status were never changed. No values were given for any of the items on Schedule 1.

[689]*689Decedent died on December 20, 1998 and her will was admitted to probate on January 15, 1999. Following Decedent’s death, Appellant filed the previously mentioned omitted and surviving spouse petitions/applications, leading to filing of a petition for declaratory judgment by Respondent.1

Before discussing Appellant’s point relied on, two items are of note. First, Respondent filed a motion to dismiss the appeal based on Appellant’s lack of compliance with Rule 84.04. That motion was taken with the appeal and was denied under a separate order of this court; thus, it will not be discussed here.

Second, Appellant included additional points relied on in his reply brief. Those points were not considered. “Assignments of error set forth for the first time in the reply brief do not present issues for appellate review.” Application of Gilbert, 563 S.W.2d 768, 771 (Mo.banc 1978); See also In re Marriage of Hunter, 614 S.W.2d 277, 278 (Mo.App.1981) (since this “error [validity of an ante-nuptial agreement] was not referred to in the appellant’s initial brief we cannot consider it.”)

We turn now to the point relied on Appellant raised in his initial brief. Appellant claims that the ante-nuptial agreement is neither valid nor enforceable, and is in fact unconscionable and unfairly made for the following four reasons:

1. Appellant was not represented by counsel,
2. Appellant received the ante-nuptial agreement only four days prior to wedding,
3. Decedent did not make a full disclosure of her assets, and
4.For the assets listed, no actual values were given.

The appellate court is required by Rule 84.13 to affirm the judgment of the trial court, “unless it is against the weight of the evidence, there is insufficient evidence to support it, or it erroneously declares or applies the law.” Garner v. Hubbs, 17 S.W.3d 922, 926 (Mo.App.2000). The trial judge’s determination as to the credibility of any witnesses is to be given due weight by the appellate court. See In re Marriage of Lewis, 808 S.W.2d 919, 922 (Mo.App.1991).

Both Appellant and Respondent cite Hosmer v. Hosmer, 611 S.W.2d 32 (Mo.App.1980), a Southern District case that addresses validity standards for ante-nuptial agreements. The Hosmer case involved an ante-nuptial agreement in which each spouse waived all marital rights, including rights to inheritance from the other spouse. See id. at 35. According to Hosmer, validity of an ante-nuptial agreement is governed by rules that “are unique and are distinct from the requirements for the execution of an ordinary contract.” Id. This is particularly true in terms of consideration, where an ante-nuptial agreement requires more than that necessary for a simple contract, in “that the consideration moving to the spouse or prospective spouse surrendering marital rights [is to] be fair and equitable in the particular circumstances:1Id.

Here, the judgment specifically noted that “[t]he consideration received by [Appellant] for the execution of the ante-nuptial agreement was fair consideration under all the circumstances.” There is sufficient evidence in the record to account [690]*690for the court’s determination.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In Re Marriage of Looney
286 S.W.3d 832 (Missouri Court of Appeals, 2009)
State v. Abdelmalik
273 S.W.3d 61 (Missouri Court of Appeals, 2008)
Pulley v. Short
261 S.W.3d 701 (Missouri Court of Appeals, 2008)
In Re Marriage of Thomas
199 S.W.3d 847 (Missouri Court of Appeals, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
60 S.W.3d 686, 2001 Mo. App. LEXIS 1750, 2001 WL 1151193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hale-v-robertson-moctapp-2001.