Stein v. Stein

789 S.W.2d 87, 1990 Mo. App. LEXIS 455, 1990 WL 29816
Missouri Court of Appeals·Decided March 20, 1990·No. 56430·Published·Cited by 18 cases

Opinion

HAMILTON, Presiding Judge.

Appellant, Lynn Stein (hereinafter Wife), filed an action in equity against her former husband, Marshall Stein (hereinafter Husband). She sought to have the trial court divide and apportion previously unallocated property and to set aside the 1982 decree of dissolution of marriage, including the Property Settlement and Separation Agreement incorporated therein, on the grounds of fraud, misrepresentation, duress, and coercion. Although rejecting Wife’s claim to set aside the decree on the latter grounds, the trial court did find that the dissolution decree failed to divide all the parties’ marital and separate property. It therefore distributed that property. We affirm.

Husband and Wife married for the first time in 1955 and subsequently divorced in 1963. They married a second time on December 28, 1976.

On Friday evening, April 30, 1982, Wife told Husband she wanted a divorce. Husband agreed to it, although the parties differed as to whether Husband reacted to Wife’s announcement calmly or became enraged. On Monday, May 3, 1982, Wife consulted an attorney, Paul Schramm (hereinafter Schramm), concerning dissolution of her second marriage to Husband. That evening she informed Husband that she had seen Schramm regarding a divorce.

Thereafter, Husband contacted the firm of Lewis & Rice concerning the divorce. He subsequently spoke by telephone with William McCalpin (hereinafter McCalpin), a partner at Lewis & Rice. During this conversation, Husband requested McCalpin to represent both him and Wife in the dissolution proceeding. McCalpin responded that he could not represent both so long as Schramm represented Wife. McCalpin had earlier represented Husband individually in business litigation against Husband’s uncle.

Following his conversation with McCal-pin, Husband spoke with Wife regarding her representation. By letter dated May 10, 1982, Wife informed Schramm that she had decided to drop divorce proceedings *91 and she requested a bill from Schramm, which Husband later paid.

On June 30, 1982, the parties met with McCalpin. At that meeting, McCalpin presented the draft of a Separation Agreement and the draft of a Joint Petition for Dissolution of Marriage. During this meeting, the parties worked out a Separa-tiop Agreement, resolving an initial disagreement concerning maintenance for Wife. The final Separation Agreement was delivered to Wife for her signature on July 1, 1982, and to Husband for his signature on July 2, 1982.

In the Separation Agreement, both parties waived their rights to maintenance. 1 They agreed to divide certain furnishings and personal property from their residences. Wife was to receive the parties’ lake house, boats, and motors. Husband was to receive their St. Louis County residence and to assume responsibility for its mortgage. Husband agreed to pay Wife the sum of $50,000 as well as attorneys’ fees and court costs for the dissolution.

On September 30, 1982, Husband and Wife each executed a property statement. These statements disclosed property that was neither divided nor set apart as separate property in the parties’ Separation Agreement nor later, in the dissolution decree. Specifically, in his property statement, Husband listed pension and profit-sharing plans from Crown Poods, as well as Crown Foods stock, Union Electric stock, and “miscellaneous bonds.” Wife listed a small pension and profit-sharing plan from Crown Foods, an automobile, and a condominium. McCalpin did not amend the Separation Agreement to reflect these items because he believed that the Separation Agreement reflected the agreement of the parties and that both parties knew the facts.

At the hearing on the dissolution, McCal-pin asked Wife on four occasions whether she wanted separate representation. Each time she indicated satisfaction with McCal-pin’s services. Following this hearing, the dissolution court approved the Separation Agreement and, on November 10, 1982, dissolved the parties’ second marriage.

The dissolution decree apportioned $150,-000 in marital property to Husband and $187,000 in marital property to Wife. Each party also received certain furnishings and items of personal property that were not valued.

On March 17, 1986, Wife filed the instant action in equity against Husband, seeking, inter alia, to divide property not previously apportioned and to vacate and set aside the Decree and Separation Agreement by reason of fraud, misrepresentation, duress, and coercion.

Following a five-day trial, the trial court issued its findings of fact, conclusions of law, and judgment. It rejected Wife’s claims of fraud, misrepresentation, duress, and coercion and declined to vacate either the dissolution decree or the Separation Agreement. Finding, however, that certain marital and separate property had not been allocated by the decree, the trial court divided it, distributing each asset to the party who had retained that asset on the date of the entry of the dissolution decree. Further facts will be referred to in the remainder of the opinion.

Wife appeals. She alleges the trial court erred (1) in rejecting her claim of fraud; (2) in rejecting her claim of mutual mistake of fact; (3) in valuing Husband’s Crown Foods stock; (4) in rejecting her claim that Husband “sacrificed” some of the parties’ marital earnings; (5) in valuing her condominium; (6) in valuing Husband’s pension and profit-sharing plans; (7) in rejecting her claim that the distribution of marital assets was inequitable; (8) in rejecting her claims of bias on the part of the trial court; (9) in denying her request for attorneys’ fees; and (10) in denying her request for costs.

This Court must sustain the judgment in a court-tried case unless no substantial evidence supports it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it *92 erroneously applies the law. Rule 73.01; Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Moreover, a decision to reverse because the judgment is against the weight of the evidence is made with caution and with a firm belief that the judgment is wrong. Id. The trial court is free to accept or to reject all, part, or none of the testimony of any witness. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989). We, therefore, accept as true the evidence and inferences therefrom that are favorable to the trial court’s decree and we disregard all contrary evidence. Id.

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Stein v. Stein, 789 S.W.2d 87, 1990 Mo. App. LEXIS 455, 1990 WL 29816 (Mo. Ct. App. 1990).

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