Mahurin v. Mahurin

656 S.W.2d 823, 1983 Mo. App. LEXIS 3480
CourtMissouri Court of Appeals
DecidedAugust 16, 1983
DocketNo. 45830
StatusPublished
Cited by1 cases

This text of 656 S.W.2d 823 (Mahurin v. Mahurin) 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
Mahurin v. Mahurin, 656 S.W.2d 823, 1983 Mo. App. LEXIS 3480 (Mo. Ct. App. 1983).

Opinion

JAMES K. PREWITT, Special Judge.

The parties were married on December 31, 1955. On July 28, 1975, they signed a separation agreement and a joint petition for dissolution of marriage. On September 19, 1975, the marriage was dissolved. The separation agreement was approved and incorporated into the decree of dissolution. It provided that appellant was to receive “all of the furniture and furnishing now located in the family home ... to have and to hold until his death or remarriage, and then in the event of either of the aforementioned events, to go to the wife as her sole and separate property absolutely.” Appellant also received the home in fee. On two occasions after the dissolution became final appellant and respondent lived together in the family home. Respondent last moved out of the family home in June of 1979 and at that time appellant refused to let her have the personal property which she now seeks by replevin.

[824]*824On November 5, 1979, respondent filed a petition in three counts. Count I sought to modify the decree of dissolution regarding the division of property. Count II sought replevin. It stated that after the parties’ marriage was dissolved respondent moved back into what had been their marital residence and brought with her various items of personal property which she is entitled to possession of and which appellant has kept ■from her. It sought the delivery of the personal property or a judgment for the value of it, together with damages for its depreciation while in appellant’s possession. Count III sought a declaratory judgment as to the extent of the property “defined by the ambiguous term ‘all of the furniture and furnishing now located in the family home’”. Respondent alleged that unless the court specifically determines what furniture and furnishing were included she will suffer an irreplaceable loss and that a “jus-ticiable controversy exists” as to what those items are.

The trial court determined that there cannot be a modification of the division of marital property in a final dissolution decree, see § 452.360.2, RSMo 1978, and sustained appellant’s motion to dismiss Count I. That ruling is not contested on appeal. The trial court entered judgment for respondent on Count II and specifically listed the items which it found that respondent was entitled to possession of. The trial court found they were removed by respondent from the marital home “at or near” the time of the dissolution “with the knowledge of” appellant. It also ordered that appellant turn over to respondent certain items purchased by her and received by her as gifts after the dissolution, and awarded her damages of $500. On Count III, seeking declaratory judgment, the trial court specifically determined the articles of “furniture and furnishings” that respondent would be entitled to upon the death or remarriage of appellant.

For his first point appellant asserts that the trial court erred in its findings on Count II and III because they violated § 452.360.2 by modifying the distribution of marital property in the original decree.

Appellant cites Flanary v. Rowlett, 612 S.W.2d 47 (Mo.App.1981), and State ex rel. Robinson v. Crouch, 616 S.W.2d 587 (Mo.App.1981). We think neither aids the appellant. In Counts II and III respondent is not questioning the validity of a portion of the decree and separation agreement as was the wife in Flanary, nor is she seeking a modification as was sought in Robinson. She is seeking to determine what she is entitled to presently and what she is entitled to upon appellant’s death or remarriage. What are “furniture and furnishing” might be subject to different interpretations and what was in the house at the time of the signing of the separation agreement was not apparent on the record previous to the trial of those counts. Section 452.360.2 does not prohibit respondent’s Counts II and III. This point is denied.

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Related

Riley v. Riley
847 S.W.2d 86 (Missouri Court of Appeals, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
656 S.W.2d 823, 1983 Mo. App. LEXIS 3480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahurin-v-mahurin-moctapp-1983.