Kuester v. Kuester

633 S.W.2d 281, 1982 Mo. App. LEXIS 2870
CourtMissouri Court of Appeals
DecidedApril 27, 1982
DocketNo. WD 32425
StatusPublished
Cited by3 cases

This text of 633 S.W.2d 281 (Kuester v. Kuester) 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
Kuester v. Kuester, 633 S.W.2d 281, 1982 Mo. App. LEXIS 2870 (Mo. Ct. App. 1982).

Opinion

TURNAGE, Judge.

Forest Kuester filed a petition for dissolution of his marriage with Loleta Kuester and Loleta filed a cross petition seeking separate maintenance, or in the alternative, a legal separation. Loleta denied, under oath, that the marriage was irretrievably broken. The court entered a decree of legal separation on a finding that the marriage was irretrievably broken because each party had behaved, while competent to do otherwise, in such a way that they could not be expected to live with the other. The court divided the marital property equally, awarded Loleta maintenance of $150 per week and attorney fees.

On this appeal Loleta contends there was insufficient evidence to find that the marriage was irretrievably broken; the court erred in refusing her separate maintenance; in awarding an insufficient amount for attorney fees; in the division of marital property; and in failing to ascribe a value to Forest’s pension. Affirmed as modified.

Forest and Loleta had been married 34 years when Loleta developed mental problems. She stopped leaving the house and required Forest to do all the shopping. She cut off all social contact with outsiders and removed, over a period of time, all the furniture in the house and placed it in the garage. She removed all of the doors and woodwork in the house and stored them in the garage. She removed cover plates from the electrical outlets, dobbed paint on the walls in the house and painted over most of the windows. She started dressing in a bizarre manner by using old clothes of her grown daughter and some of her husband’s old clothes.

[283]*283An example of her behavior is contained in the testimony of Barbara Kueck who was appointed and acted as Loleta’s guardian ad litem in this case. Barbara was the wife of Wallace Kueck who was Forest’s cousin. Barbara described a visit to the Kuester’s home after Loleta began having her problems. She said there was no furniture in the house and there was a mattress on the floor. She said the kitchen was not being used. There was firewood on the floor in the living room. Metal drums with boards on the top were used as tables and for storage. There was a length of rope glued along the living room floor and Loleta said this was for decoration. The windows were painted over and holes were knocked in the wallboard. The woodwork had been removed, electrical plates were off, and there were two pairs of slacks in the freezer. When Loleta began fixing supper, she put beans in an electric skillet with two pounds of sugar.

Forest testified to his wife’s behavior along the same lines as described by Barbara. Forest said about four years prior to the hearing on his petition, Loleta had moved out of the bedroom and they had lived separate, but in the same house, since that time. He said she stopped cooking most of the meals because she had moved the stove out. Cooking was done in an electric skillet and sometimes in the fireplace. Forest said she had shown no affection since she moved out of the bedroom. Forest stated that Loleta had always been nervous and high strung, but when her behavior became so unusual, he tried to get her to go to a physician but she refused. Forest stated that he knew from living with her for 34 years that if he forced her to get medical help for her mental problem she would refuse to return to the home. Forest finally sought help from a court. The record is not clear, but apparently Loleta was ordered confined to Western Missouri Mental Health Center involuntarily. She stayed there six to seven weeks and was diagnosed as schizophrenic, paranoid type. A physician testified that she could not be cured, but her condition could be controlled with drugs and psychotherapy.

When Loleta was about ready to be discharged, Forest discussed with a social worker the daily treatments which Loleta would require. Forest thought, due to his job and the daily travel required to take Loleta for treatment, that it would be better if she could stay in some home close to the place of treatment. The social worker said she would try to arrange this.

In the meantime, the Kueck’s had visited Loleta, and when Wallace heard that Loleta would have to stay in a home, he decided it would be better for her to stay at their house. Wallace made arrangements to take Loleta to his home, without discussing it with Forest, and did so. Forest went to the hospital to arrange for Loleta to leave and learned that she had left with the Kuecks the day before.

Loleta was called as a witness by Forest, and from her testimony appeared to understand the proceedings and the questions which were asked. She admitted removing the furniture, doors and woodwork from the house, as well as the odd painting. Her answers were responsive, which was consistent with the testimony that her condition had improved since her discharge from the hospital.

Forest admitted in his testimony that he had engaged in adulterous conduct after Loleta ceased showing any affection.

At the outset it is necessary to comment on the pleadings which were filed. Loleta filed an answer in response to Forest’s petition for dissolution and denied, under oath, that the marriage was irretrievably broken. She also filed a cross petition in which she sought separate maintenance, or in the alternative, legal separation. Section 452.-310, RSMo 19781, provides it is necessary in a petition for dissolution or legal separation to allege that the marriage is irretrievably broken. Loleta’s cross petition contained no such allegation. Thus her petition did not state facts upon which the court could grant a legal separation on her petition.

Section 452.320.2 provides that if one of the parties denies under oath that the marriage is irretrievably broken, the court shall [284]*284consider all relevant factors, and, after hearing, shall make a finding of whether or not the marriage is irretrievably broken. One of the grounds on which the court can make that finding is that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

It follows from this statutory requirement that the finding of the court that each party had behaved in such a way, while competent, that the other could not be expected to live with that party, did not respond to the statutory mandate. The court was required to find under Forest’s petition whether or not Loleta had behaved in such a way that Forest could not be reasonably expected to live with her. However, it is clear from the evidence that there was substantial evidence to support a finding that Loleta had behaved in such a way that Forest could not be reasonably expected to live with her. The omission may be supplied by modifying the judgment. The finding that Forest had behaved in such a way that Loleta could not be reasonably expected to live with him is not supported by the evidence. The only evidence which would support such a finding was his adulterous conduct. Adultery is specifically dealt with in § 452.320.2(l)(a) and requires that a petitioner find it intolerable to live with a respondent who has committed adultery. There was no evidence that Loleta found it intolerable to live with Forest because of his adultery.

Loleta first contends there was insufficient evidence to support the finding that the marriage was irretrievably broken.

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Bluebook (online)
633 S.W.2d 281, 1982 Mo. App. LEXIS 2870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuester-v-kuester-moctapp-1982.