In re the Marriage of Tennant

769 S.W.2d 454, 1989 Mo. App. LEXIS 533, 1989 WL 36893
CourtMissouri Court of Appeals
DecidedApril 19, 1989
DocketNo. 15746
StatusPublished
Cited by4 cases

This text of 769 S.W.2d 454 (In re the Marriage of Tennant) 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
In re the Marriage of Tennant, 769 S.W.2d 454, 1989 Mo. App. LEXIS 533, 1989 WL 36893 (Mo. Ct. App. 1989).

Opinion

CROW, Presiding Judge.

Karl Edmond Tennant (“Karl”) appeals from a decree dissolving his marriage to Carolyn Dean Tennant (“Carolyn”), complaining that the trial court erred in (1) dividing the marital real estate situated in Missouri, and (2) ordering Karl to pay Carolyn maintenance.

The parties were married September 2, 1957.1 The union produced two children, both of whom were emancipated when Karl and Carolyn separated in August, 1985.

At time of trial the parties owned, as marital property, 251 acres of rural land in Missouri. It consisted of 40 acres in Butler County, 111 acres in Wayne County, and 100 acres in Ripley County. The parties also owned, as marital property, a residence in Poplar Bluff.2

The trial court’s decree provided that Carolyn was to receive all the Missouri real estate. The decree then said:

“With regard to all real estate located in ... Missouri, ... all property is hereby sold at private sale by [Carolyn], and if not sold within six (6) months, then at public sale to the highest bidder. From the total proceeds of said sales shall be deducted all costs and expenses of sale, and [Carolyn] is to be reimbursed for actual out-of-pocket expenses for taxes and insurance on the property which she is ordered to pay and assume prior to said sales. All net proceeds are to be divided equally between the parties. [Karl] shall have a lien on the real estate to protect his one-half interest therein.” Karl’s first point is:
“The trial court erred in dividing the marital property in directing the wife to sell the Missouri real estate without any restrictions being placed on the wife and in relinquishing to wife all authority concerning the sale because this was beyond the power of the trial court or at least an abuse of discretion and prejudicial to husband’s interest.”

During oral argument before us Karl’s lawyer conceded that while this appeal was pending Carolyn had sold all the Missouri real estate pursuant to the trial court’s decree, and that Karl had accepted all sums tendered to him as his share of the sale proceeds without requesting that such funds be held in the registry of the trial court pending the outcome of this appeal.3

The general rule is that a litigant who has voluntarily and with knowledge of all the material facts accepted the benefits of a decree or judgment of a court cannot afterwards take or prosecute an appeal to reverse it. Central States Life Ins. Co. v. Lewin, 342 Mo. 383, 115 S.W.2d 801, 801[1] (1938); Hull v. Hull, 591 S.W.2d 376, 379[1] (Mo.App.1979); In re Marriage of E. A. W., 573 S.W.2d 689, 691[1] (Mo.App.1978); Knebel v. Knebel, 189 S.W.2d 464, 466 (Mo.App.1945). The reason for the rule is that a party cannot proceed to enforce and have the benefit of such portions of a judgment as are in his favor and appeal from those against it — in other words, the right to proceed on a judgment and enjoy its fruits and the right to appeal therefrom are totally inconsistent positions, and the election to pursue one course must be deemed an abandonment of the other. Central States Life Ins. Co., 115 S.W.2d at 801-02; Hull, 591 S.W.2d at 379[1]; E. A. W., 573 S.W.2d at 691[1]; Knebel, 189 S.W.2d at 466.

There is an exception to the above rule: where a party accepts payment, after [456]*456judgment, of items that were never in contest, such party is not barred from appealing. Central States Life Ins. Co., 115 S.W.2d at 802; Knebel, 189 S.W.2d at 466[3]. That is, a party is not precluded from bringing an appeal where that party is so entitled to the sum collected or accepted that reversal of the judgment or decree will not affect his right to it. E. A. W., 573 S.W.2d at 691[1].

The exception is inapplicable here, as Karl’s right to receive half the net proceeds of the sale of the Missouri real estate was conferred by the provision in the dissolution decree providing for the sale of such real estate and for the equal division of the net proceeds between Carolyn and Karl. Having voluntarily accepted the proceeds of the sales conducted pursuant to that provision Karl is now foreclosed from challenging such provision on appeal.

Karl’s second point is:

“The trial court erred in its maintenance order ... on the ground that there is no substantial evidence on which to base a finding by the trial court that wife lacks sufficient property, including the marital property apportioned to her, to provide for her reasonable needs and that wife is unable to support herself through appropriate employment and on the further ground that said maintenance order is not sufficiently certain in its terms to be susceptible of enforcement and does not specify with definitness [sic] and certainty the amount of maintenance husband is required to pay per month.”

It is arguable from the cases referred to in our discussion of Karl’s first point that inasmuch as he has pocketed the proceeds of the sale of the Missouri real estate provided for in the decree, he is barred from attacking the maintenance provision in that decree. We need not, however, decide that issue because, as henceforth explained, we find no merit in Karl’s second point. We have opted to dispose of the point on the merits instead of addressing the more difficult issue of whether the point is precluded by Karl’s acceptance of the sale proceeds.

At time of trial Karl, age 60, was employed by the Missouri Department of Conservation at an annual salary of $35,635. He had been employed by that agency throughout the marriage and, at time of trial, was eligible to retire. Carolyn testified without contradiction that had Karl retired at that time his monthly retirement benefit “would be somewhere around between $1,100.00 and $1,200.00.” Karl, however, testified he had no plans to retire immediately, as he was financially unable to do so. He explained he could continue working until age 70, at which time he would “have to quit.” There was no evidence as to what his monthly retirement benefit will be if he works until age 70.

The segment of the decree complained of by Karl’s second point states:

“The Court finds [Karl’s] pension interests with the State of Missouri specifically to be marital property, and further finds it to be fully vested and mature but not currently in pay status. Accordingly, [Karl] is ordered to pay to [Carolyn] one-half of each monthly annuity amount upon its receipt from the State of Missouri. In the interim, the Court finds that [Carolyn] is in need of financial support for herself and that [Karl] shall pay to her, as maintenance, ... Six Hundred Fifty Dollars ... per month. Said payments are modifiable and shall terminate upon her death or remarriage. Said payments shall further be reduced at such time as [Karl] retires and commences paying to [Carolyn] one-half of his monthly entitlement from the [Missouri state employees] Pension Plan, and any amount paid shall be credited against his maintenance obligation. In any event, [Carolyn] shall receive from [Karl] one-half of his monthly retirement benefit, or ... Six Hundred Fifty Dollars ..., whichever is greater.”

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Bluebook (online)
769 S.W.2d 454, 1989 Mo. App. LEXIS 533, 1989 WL 36893, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-tennant-moctapp-1989.