Jezewak v. Jezewak

3 S.W.3d 860, 1999 Mo. App. LEXIS 1723, 1999 WL 672555
CourtMissouri Court of Appeals
DecidedAugust 31, 1999
DocketNo. ED 74800
StatusPublished
Cited by9 cases

This text of 3 S.W.3d 860 (Jezewak v. Jezewak) 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
Jezewak v. Jezewak, 3 S.W.3d 860, 1999 Mo. App. LEXIS 1723, 1999 WL 672555 (Mo. Ct. App. 1999).

Opinion

PAUL J. SIMON, Presiding Judge.

Raymond Jezewak (Husband) appeals from the judgment of the Circuit Court in its division of marital property. Susan Jezewak, now known as Susan Reis (wife), cross-appeals the property division and the denial of attorneys and guardian ad litem fees.

In his sole point on appeal, husband alleges that the trial court’s award of marital property was against the weight of the evidence, as the court stated in its judgment that “ The court finds it just and equitable to divide the marital property as close as possible to one-half to Petitioner and one-half to Respondent” and then failed to do so. Wife filed a motion to dismiss husband’s appeal on the grounds that he was procedurally estopped from appealing the property division in light of his filing of a motion for contempt to enforce the trial court’s judgment. The motion was ordered taken with the case, and we deny the same. Wife also cross-appeals alleging that the trial court erred in: (1) not setting aside to wife, as her separate property the $12,000 previously divided by the parties and the value of the bedroom suite given to her by her mother; (2) the assignment of values to marital assets; (3) finding that there should be an equal division of property among the parties; (4) ordering wife to pay one-half of the guardian ad litem fees and in failing to order husband to pay wife’s attorney’s fees; (5) calculation of the amount of the note to be given to wife. We reverse and remand in part and affirm in part.

The record reveals that husband and wife were married in St. Louis County in 1986 and lived together as husband and wife until on or about January 1, 1998. Two children were born of the marriage, the oldest born November 7, 1991 and the youngest January 12, 1996. Since wife alleged abuse, a guardian ad litem was appointed to represent the children’s interests.

The parties agreed to a “custody plan,” child support, income tax dependency deductions, health care coverage of the minor children, reimbursement of uninsured medical expenses and educational expenses. The agreement was later incorporated into the judgment.

The court entered a judgment on June 18, 1998 and, pursuant to motions by the parties, modified it on July 22, 1998. On October 6, 1998, the court entered an amended judgment, incorporating the July amendments into the original judgment and correcting some minor clerical errors. In November, the court again amended the judgment to incorporate “Other Orders,” which were left out of the October amendment. The judgment included: (1) a “custody plan,” regarding physical and legal custody of the minor children, child support, income tax dependency deductions, health care coverage over the minor children, reimbursement of uninsured medical expenses, educational expenses; (2) “Other Orders,” regarding the terms of disposition of the marital home; (3) a denial of maintenance to both parties; (4) dispositions of the parties’ separate and marital property; (5) a denial of attorneys fees and order that each party pay one half of the guardian ad litem fees. The court awarded the following non-marital property to the wife: wife’s clothing, jewelry, personal effects, 240 shares of Anheuser Busch and Earthgrain stock, cedar chest, UMC desk, antique dresser, vanity, end tables and night stand, set of pots and pans, book case, microwave, quilts, and [863]*863bedroom set in upstairs bedroom. To husband, the court awarded the following non-marital property: husband’s clothing, jewelry and personal effects, 80 shares of Ralston Purina Stock, 24 shares of Ral-corp/General Mills Stock, 4 shares of Agri-Brands stock, water-ski, life jacket, receiver, tape deck, turntable, equalizer, two speakers and certain Fidelity Funds ($1500.00).

In its division of the marital property, the trial court, guided by Section 452.330 RSMo 1994 (all further references shall be to RSMo 1994, unless otherwise indicated), considered that each of the parties had contributed to the acquisition of marital property, the economic circumstances of each of the parties at the time the division of property is to become effective, the conduct of the parties during the marriage, the value of the separate property, and the custodial arrangements for the children. The court rejected wife’s contentions that she be awarded a disproportionate share of the property and discounted allegations of husband’s misconduct. The court stated in its judgment that “The court finds it just and equitable to divide the marital property as close as possible to one-half to Petitioner and one-half to Respondent.”

The court awarded the following marital property to wife: 1990 Honda Accord ($4100.00); First Community checking account 92000539 ($1290.00), and savings account ($750.00); Nation’s Bank Account Nos. 00-5045-037059 ($18,433.00), 5045-282640 ($10,146.00), 36-4600210 ($6214.00); wife’s household goods ($10,349.00); Fidelity Funds Accounts T72789411, T67249019, T79862594 ($81,643.00); Susan D. Reis & Assoc. Inc. ($19,000), marital items in possession of wife ($2335.00). The court awarded the husband: 1994 Nissan Quest Van ($6700); Mercantile Accounts 181001280 ($40.00), 1810145829 ($85.00), 181014478-0 ($2027.00), 22-050903 ($10,-276.00); Nations Bank Account No. 02701-0236-41892 ($285.00); husband’s household goods ($3235.00); Fidelity Funds Accounts T96176008, T67249027, T81388446 ($32,-142.00); Jefferson Pilot Life Insurance surrender value ($890.00); Republic National Life ($2150.00) Raymond Jezewak Photography ($10,000.00); two dogs (no value); judgment for husband against wife ($16,360.00).

Husband filed his timely notice of appeal of the July 22, judgment on July 31, 1998, and wife filed hers August 3, 1998. Pending appeal, on December 10, 1998, Husband filed a Motion for Contempt and/or Civil Rule 74.07 Motion for Judgment for Specific Acts-Vesting Title-Delivery of Possession. Husband alleged that with respect to the sale of the home, wife failed to comply with the judgment and that wife failed to deliver Mercantile Bank Accounts Nos. 22-050903 ($10,276.00) and 1810144780-0 ($2027.00) to Husband. On February 16,1999, the parties entered into an Agreement and Stipulation for Dismissal, regarding the sale of the house and husband withdrew his motion for contempt.

We first consider wife’s motion to dismiss Husband’s appeal, which was ordered taken with the case. A party may procedurally estop himself from taking an appeal by performing acts after the rendition of the judgment which are clearly inconsistent with the right of appeal, and the estoppel may consist of any voluntary act which expressly or impliedly recognizes the validity of the judgment. Schulte v. Schulte, 949 S.W.2d 225, 226 (Mo.App. E.D.1997). In Feinberg v. Feinberg, we held that where the wife had appealed a property settlement and denial of alimony and thereafter filed a motion for contempt maintaining that the husband had failed to make monthly payments in accordance with the decree’s property settlement, wife’s attempt to enforce the decree and acceptance of partial payment was not inconsistent with a request for redistribution of assets or maintenance. Feinberg v. Feinberg, 676 S.W.2d 5. Similarly, here since husband’s motion for contempt to compel the delivery of the assets he was awarded was not inconsistent with [864]*864his plea for more marital assets, the motion is denied.

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Bluebook (online)
3 S.W.3d 860, 1999 Mo. App. LEXIS 1723, 1999 WL 672555, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jezewak-v-jezewak-moctapp-1999.