Secor v. Secor

790 S.W.2d 500, 1990 Mo. App. LEXIS 835, 1990 WL 71583
CourtMissouri Court of Appeals
DecidedMay 29, 1990
DocketNos. 56871, 56908
StatusPublished
Cited by4 cases

This text of 790 S.W.2d 500 (Secor v. Secor) 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
Secor v. Secor, 790 S.W.2d 500, 1990 Mo. App. LEXIS 835, 1990 WL 71583 (Mo. Ct. App. 1990).

Opinion

REINHARD, Judge.

Husband appeals from a decree dissolving the parties’ marriage and an order denying his Rule 74.03 motion to set aside that decree.1 We affirm both.

[501]*501The parties were married for over twenty years before they separated. No children were born of the marriage. Husband is a physician and at the time of dissolution both husband and wife were employees of Eastern Missouri General Services, Inc., a corporation they owned. Wife filed the petition for dissolution on October 26,1988. The following day she filed husband’s “Entry of Appearance, Waiver of Personal Service of Summons, Consent to Trial and Entry of Decree Without Notice” together with their “Marital Separation and Agreement.” On November 17, 1988, wife’s counsel filed a copy of the notice mailed to husband on November 16,1988, which stated that the case would be called for hearing on December 15, 1988. On that date wife and her counsel appeared, but husband did not. The court heard evidence and granted dissolution of the marriage. It found the marital separation agreement was not unconscionable, incorporated it into the decree as if set out, and ordered the parties to perform the terms of the agreement.

On review we must affirm the trial court’s judgment unless it is unsupported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

In his first point husband alleges:

The trial court abused its discretion ... in finding that the parties’ separation agreement was not unconscionable because ... wife was awarded substantially all of the parties’ considerable assets ... while ... husband was awarded minimal assets and substantially all of the parties’ debts and liabilities and was required to pay excessive maintenance and other payments to the wife.

Our Supreme Court, on similar facts, construed the statute applicable here (§ 452.325.2, RSMo 1986): “[T]he statute provides that the terms of the agreement are binding on the court unless it finds that economic evidence produced by the parties on their own motion, or requested by the court, demonstrates unconscionability.” Dow v. Dow, 732 S.W.2d 906, 907-08 (Mo. banc 1987) (footnote omitted). It went on to hold that the court is under no affirmative duty “to investigate and examine the economic circumstances of the parties and other relevant factors in determining con-scionability of the .settlement agreement.” Id. at 908. From Dow it is clear that the trial court did not err in finding the separation agreement was not unconscionable.

Husband also contends on direct appeal:

The trial court erred in awarding to the individual parties certain assets belonging to Eastern Missouri General Services, Inc. and a corporate salary to the wife, because the court was without jurisdiction to distribute these assets or to order the corporation to pay a salary in that the corporation was not a party to the dissolution action.

The parties agreed that Eastern Missouri General Services, Inc. held title to the following property, to wit: Trans Am GTA automobile, VIN No. IG2FW21FOJL240158; Certificate of Deposit No. A02494; U.S. Savings Bonds No. 43-1339266; and real estate located at 322 North State, Desloge, Missouri. The terms of the separation agreement divided this property as follows: wife — the automobile, certificate of deposit and savings bonds; husband — the real estate.2

[502]*502The separation agreement reveals the following: The parties stated Eastern Missouri General Services, Inc. is their “wholly owned corporation”;3 they agreed that there was no nonmarital property; they specifically disposed of the corporate property treating it as marital property; and wife agreed to transfer her interest in the corporate stock to husband, however, if husband sells the stock she is to receive one-half of the sale proceeds. In addition, the following clause appears regarding wife’s employment:

The parties do hereby agree that Wife shall be an employee of the parties wholly owned corporation namely: Eastern Missouri General Services, Inc. at a gross salary of $1,000 paid every two weeks for a period of three years or until Wife obtains suitable employment, whichever occurs earlier. This provision of the marital Stipulation and Agreement is also subject to a separate and enforceable contract of employment by and between the parties and Eastern Missouri General Services, Inc.

No mention was made of how title to the Trans Am automobile was held (wife admits in her brief that it was titled in the corporate name).

In support of his argument that the trial court lacked jurisdiction over the corporate assets husband relies principally upon the Southern District’s case of In re Marriage of Ward, 659 S.W.2d 605 (Mo. App.1983). In Ward the trial court determined that assets of Ward Plumbing and Heating (the husband was the sole stockholder) were marital assets and ordered distribution of some of these assets to the wife and others to the husband as part of its division of the marital property. It also awarded the corporation’s stock to the husband. On appeal, the Southern District held that the trial court committed reversible error by classifying corporate assets as marital property and dividing those assets between the parties. In so holding it stated:

A marital dissolution decree may not purport to affect property of a corporation that is not a party to the litigation, even if the corporate stock is primarily or entirely owned by one of the parties to the dissolution.... The trial court has no jurisdiction to enter a decree dividing property that is not owned by either spouse.

Id. at 607. The general rule stated above is not, however, without exception. A court of equity may disregard the corporate entity under proper circumstances. Durwood v. Dubinsky, 361 S.W.2d 779 (Mo.1962); Krajcovic v. Krajcovic, 693 S.W.2d 884 (Mo.App.1985). This is one of those circumstances. Unlike Ward and other cases husband relies on, here the parties have agreed properties held in the corporate name are marital assets and have requested the court to distribute those assets in a specific manner; the cases husband relies on are not controlling.

We have not found a marital dissolution case in Missouri, or elsewhere, involving the distribution of corporate assets in accordance with a separation agreement. [503]*503In Lyons v. Lyons, 340 So.2d 450 (Ala.Civ. App.1976), the court affirmed a divorce court which, in distributing marital property, ordered that real estate titled in a corporate name be conveyed to the wife. The wife owned one share of the corporation’s stock; the husband owned the remainder. The court said:

“Defendant [the husband] operated the corporation as his alter ego....
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Cite This Page — Counsel Stack

Bluebook (online)
790 S.W.2d 500, 1990 Mo. App. LEXIS 835, 1990 WL 71583, Counsel Stack Legal Research, https://law.counselstack.com/opinion/secor-v-secor-moctapp-1990.