In the Missouri Court of Appeals Eastern District DIVISION ONE
THANHPHUONG THI NGUYEN, ) No. ED107014 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) 0822-FC01809 ) DIENG NGUYEN, ) Honorable Theresa Burke ) Respondent. ) Filed: April 23, 2019
Thanhphuong Thi Nguyen (“Wife”) appeals the trial court’s judgment granting in part
and denying in part her motion to enforce a separation agreement that was entered into between
Wife and Dieng Nguyen (“Husband”) and incorporated into the judgment dissolving their
marriage. We reverse and remand. 1
I. BACKGROUND
Husband and Wife were married on October 19, 2001. After approximately seven years
of marriage, the parties separated and Wife subsequently petitioned the court to dissolve the
marriage. On July 13, 2009, the parties were divorced pursuant to a dissolution judgment
entered by the Circuit Court of the City of St. Louis. There were no children born of the
marriage.
1 Wife has filed a motion for attorney’s fees on appeal, which has been taken with the case. For the reasons set forth in Section II.C. below, we grant Wife’s motion in the amount of $14,215.30.
1 To facilitate and effectuate their divorce, Husband and Wife entered into a Separation
Agreement which, among other things, divided three parcels of real property. The Separation
Agreement and its terms were approved and incorporated into the trial court’s “Judgment of
Dissolution of Marriage: Separation Agreement” (collectively “the Dissolution Judgment”).
Pursuant to the Separation Agreement, Husband was awarded the marital residence. The
two remaining parcels of real property consisted of a two-family flat located at 3709-3711
Chippewa Street in the City of St. Louis and a four-unit apartment building located at 5518
Chippewa Street in the City of St. Louis (“the Chippewa properties”). During the marriage and
at the time the Separation Agreement was executed, the Chippewa properties were jointly owned
by the parties and subject to joint deed of trust obligations. In the Separation Agreement,
however, the parties agreed Husband would be awarded the Chippewa properties subject to
certain conditions. In relevant part, the Separation Agreement specifically states:
No later than 90 days from the date of entry of a judgment of dissolution in this cause, [Husband] shall either (A) obtain the consent of [the lender] to his sole assumption of the Mortgage and deed of trust, and obtain the lender’s release of [Wife] from any obligations under the Mortgage and deed of trust, or (B) qualify for and obtain the refinancing of the existing Mortgage and thereby release [Wife] from any obligations under the Mortgage and deed of trust. In the event that [Husband] fails to obtain the release of [Wife] by either method set forth in (A) or (B) within 90 days from the entry of judgment, the property shall be listed for sale at such list price as the parties shall agree, and the net proceeds of the sale, after payment of any indebtedness, real estate broker’s fees and closing costs, shall be equally divided between the parties. Should said listing fail to result in a sale of the property within 180 days from the entry of judgment, the list price shall be reduced to its then-appraised value according to the City of St. Louis Assessor’s Office, if less than the agreed list price, and the net proceeds of the sale, after payment of any indebtedness, real estate broker’s fees and closing costs, shall be equally divided between the parties. 2
The parties filed no post-trial motions or appeals from the Dissolution Judgment.
2 The Separation Agreement restated this provision with respect to each of the Chippewa properties.
2 It is undisputed Husband failed to obtain the release of Wife from any obligations under
the mortgages and deeds of trust relating to the Chippewa properties pursuant to one of the
methods set forth above within ninety days from the entry of the Dissolution Judgment.
Although there is conflicting evidence as to when Wife learned of Husband’s default, Wife
finally acted on the information in 2017. On March 6, 2017, Wife’s counsel sent a letter to
Husband demanding that the Chippewa properties be immediately listed for sale pursuant to the
terms of the Dissolution Judgment. On April 11, 2017, Wife filed a motion to enforce separation
agreement requesting that, (1) Husband be required to list the Chippewa properties for sale with
the net proceeds of the sale to be equally divided between the parties; and (2) Wife be awarded
her reasonable attorney’s fees and costs. Husband did not file an answer to Wife’s motion.
During the course of litigation, Husband refinanced the mortgages on both of the
Chippewa properties, thereby releasing Wife from any obligations under the mortgages and
deeds of trust. However, Husband refused to list the subject properties for sale as required by the
Dissolution Judgment. Following a bench trial, the trial court entered a judgment granting
Wife’s motion to enforce in part and denying it in part. The trial court granted Wife’s motion to
the extent, (1) the court found Wife had been damaged as a result of Husband’s delay in
obtaining the release of Wife from any obligations under the mortgages and deeds of trust as
required under the Dissolution Judgment; (2) the court awarded Wife $9,600 in damages; and (3)
the court awarded Wife her reasonable attorney’s fees in pursuing her motion to enforce.
However, the trial court denied Wife’s motion insofar as it did not order the Chippewa properties
to be sold. Wife appeals the portion of the trial court’s judgment denying her motion to enforce.
3 II. DISCUSSION
In Wife’s sole point on appeal, she argues the trial court erred and misapplied the law by
refusing to order the Chippewa properties to be sold and the net proceeds of the sale to be
equally divided between the parties, as required by the Dissolution Judgment. Wife maintains
the trial court’s action was an improper modification of a separation agreement incorporated into
a final judgment.
In addition, Wife has filed a motion for attorney’s fees on appeal, which has been taken
with the case.
A. Standard of Review
We review the trial court’s judgment on a motion to enforce separation agreement to
determine whether it is supported by substantial evidence, whether it is against the weight of the
evidence, or whether it erroneously declares or applies the law. Perryman v. Perryman, 117
S.W.3d 681, 682-84 (Mo. App. E.D. 2003); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.
banc 1976).
B. Relevant Law and Analysis of Wife’s Sole Point on Appeal
Pursuant to section 452.325.1 RSMo 2000, 3 parties may enter into a written separation
agreement providing for, inter alia, the division of marital property. Section 452.325.1; Schaffer
v. Haynes, 847 S.W.2d 814, 816 (Mo. App. E.D. 1992). If the trial court determines the
separation agreement’s terms are not unconscionable, the trial court must incorporate said terms
into its dissolution judgment and order the parties to perform them. Section 452.325.4(1);
Schaffer, 847 S.W.2d at 816. When the terms of the parties’ separation agreement are
incorporated into the dissolution decree, the agreement’s terms relating to the distribution of
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In the Missouri Court of Appeals Eastern District DIVISION ONE
THANHPHUONG THI NGUYEN, ) No. ED107014 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) 0822-FC01809 ) DIENG NGUYEN, ) Honorable Theresa Burke ) Respondent. ) Filed: April 23, 2019
Thanhphuong Thi Nguyen (“Wife”) appeals the trial court’s judgment granting in part
and denying in part her motion to enforce a separation agreement that was entered into between
Wife and Dieng Nguyen (“Husband”) and incorporated into the judgment dissolving their
marriage. We reverse and remand. 1
I. BACKGROUND
Husband and Wife were married on October 19, 2001. After approximately seven years
of marriage, the parties separated and Wife subsequently petitioned the court to dissolve the
marriage. On July 13, 2009, the parties were divorced pursuant to a dissolution judgment
entered by the Circuit Court of the City of St. Louis. There were no children born of the
marriage.
1 Wife has filed a motion for attorney’s fees on appeal, which has been taken with the case. For the reasons set forth in Section II.C. below, we grant Wife’s motion in the amount of $14,215.30.
1 To facilitate and effectuate their divorce, Husband and Wife entered into a Separation
Agreement which, among other things, divided three parcels of real property. The Separation
Agreement and its terms were approved and incorporated into the trial court’s “Judgment of
Dissolution of Marriage: Separation Agreement” (collectively “the Dissolution Judgment”).
Pursuant to the Separation Agreement, Husband was awarded the marital residence. The
two remaining parcels of real property consisted of a two-family flat located at 3709-3711
Chippewa Street in the City of St. Louis and a four-unit apartment building located at 5518
Chippewa Street in the City of St. Louis (“the Chippewa properties”). During the marriage and
at the time the Separation Agreement was executed, the Chippewa properties were jointly owned
by the parties and subject to joint deed of trust obligations. In the Separation Agreement,
however, the parties agreed Husband would be awarded the Chippewa properties subject to
certain conditions. In relevant part, the Separation Agreement specifically states:
No later than 90 days from the date of entry of a judgment of dissolution in this cause, [Husband] shall either (A) obtain the consent of [the lender] to his sole assumption of the Mortgage and deed of trust, and obtain the lender’s release of [Wife] from any obligations under the Mortgage and deed of trust, or (B) qualify for and obtain the refinancing of the existing Mortgage and thereby release [Wife] from any obligations under the Mortgage and deed of trust. In the event that [Husband] fails to obtain the release of [Wife] by either method set forth in (A) or (B) within 90 days from the entry of judgment, the property shall be listed for sale at such list price as the parties shall agree, and the net proceeds of the sale, after payment of any indebtedness, real estate broker’s fees and closing costs, shall be equally divided between the parties. Should said listing fail to result in a sale of the property within 180 days from the entry of judgment, the list price shall be reduced to its then-appraised value according to the City of St. Louis Assessor’s Office, if less than the agreed list price, and the net proceeds of the sale, after payment of any indebtedness, real estate broker’s fees and closing costs, shall be equally divided between the parties. 2
The parties filed no post-trial motions or appeals from the Dissolution Judgment.
2 The Separation Agreement restated this provision with respect to each of the Chippewa properties.
2 It is undisputed Husband failed to obtain the release of Wife from any obligations under
the mortgages and deeds of trust relating to the Chippewa properties pursuant to one of the
methods set forth above within ninety days from the entry of the Dissolution Judgment.
Although there is conflicting evidence as to when Wife learned of Husband’s default, Wife
finally acted on the information in 2017. On March 6, 2017, Wife’s counsel sent a letter to
Husband demanding that the Chippewa properties be immediately listed for sale pursuant to the
terms of the Dissolution Judgment. On April 11, 2017, Wife filed a motion to enforce separation
agreement requesting that, (1) Husband be required to list the Chippewa properties for sale with
the net proceeds of the sale to be equally divided between the parties; and (2) Wife be awarded
her reasonable attorney’s fees and costs. Husband did not file an answer to Wife’s motion.
During the course of litigation, Husband refinanced the mortgages on both of the
Chippewa properties, thereby releasing Wife from any obligations under the mortgages and
deeds of trust. However, Husband refused to list the subject properties for sale as required by the
Dissolution Judgment. Following a bench trial, the trial court entered a judgment granting
Wife’s motion to enforce in part and denying it in part. The trial court granted Wife’s motion to
the extent, (1) the court found Wife had been damaged as a result of Husband’s delay in
obtaining the release of Wife from any obligations under the mortgages and deeds of trust as
required under the Dissolution Judgment; (2) the court awarded Wife $9,600 in damages; and (3)
the court awarded Wife her reasonable attorney’s fees in pursuing her motion to enforce.
However, the trial court denied Wife’s motion insofar as it did not order the Chippewa properties
to be sold. Wife appeals the portion of the trial court’s judgment denying her motion to enforce.
3 II. DISCUSSION
In Wife’s sole point on appeal, she argues the trial court erred and misapplied the law by
refusing to order the Chippewa properties to be sold and the net proceeds of the sale to be
equally divided between the parties, as required by the Dissolution Judgment. Wife maintains
the trial court’s action was an improper modification of a separation agreement incorporated into
a final judgment.
In addition, Wife has filed a motion for attorney’s fees on appeal, which has been taken
with the case.
A. Standard of Review
We review the trial court’s judgment on a motion to enforce separation agreement to
determine whether it is supported by substantial evidence, whether it is against the weight of the
evidence, or whether it erroneously declares or applies the law. Perryman v. Perryman, 117
S.W.3d 681, 682-84 (Mo. App. E.D. 2003); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.
banc 1976).
B. Relevant Law and Analysis of Wife’s Sole Point on Appeal
Pursuant to section 452.325.1 RSMo 2000, 3 parties may enter into a written separation
agreement providing for, inter alia, the division of marital property. Section 452.325.1; Schaffer
v. Haynes, 847 S.W.2d 814, 816 (Mo. App. E.D. 1992). If the trial court determines the
separation agreement’s terms are not unconscionable, the trial court must incorporate said terms
into its dissolution judgment and order the parties to perform them. Section 452.325.4(1);
Schaffer, 847 S.W.2d at 816. When the terms of the parties’ separation agreement are
incorporated into the dissolution decree, the agreement’s terms relating to the distribution of
3 All further statutory references are to RSMo 2000, which are the latest versions of the statutes.
4 marital property are binding on the trial court and the court has no power to modify them.
Meissner v. Schnettgoecke, 211 S.W.3d 157, 159-60 (Mo. App. E.D. 2007); In re Marriage of
Kenney, 137 S.W.3d 487, 491 (Mo. App. S.D. 2004); Bolton v. Bolton, 950 S.W.2d 268, 271
(Mo. App. E.D. 1997); see also sections 452.360.2, 452.325.2, and 452.330.5. Further, the
doctrine of res judicata applies to all property divided under the original final dissolution
judgment, and thus, a party cannot seek redistribution of property dealt with in the original
decree. See Meissner, 211 S.W.3d at 160-61; Kenney, 137 S.W.3d at 491.
In this case, the parties entered into the Separation Agreement; the trial court then found
its terms were not unconscionable and incorporated them into the Dissolution Judgment. Thus,
the terms of the Separation Agreement are enforceable as part of the Dissolution Judgment. See
sections 452.325.4(1) and 452.325.5; Schaffer, 847 S.W.2d at 816. After the Dissolution
Judgment was entered on July 13, 2009 and no post-trial motions or appeals were filed, the
Dissolution Judgment became final and res judicata as to all property divided therein, including
the Chippewa properties. See Kenney, 137 S.W.3d at 491 and Schaffer, 847 S.W.2d at 817
(similarly finding); see also Meissner, 211 S.W.3d at 160-61. Thereafter, the trial court was
without authority to modify the property distribution terms contained in the Separation
Agreement as incorporated into the Dissolution Judgment. See Meissner, 211 S.W.3d at 159-61;
Kenney, 137 S.W.3d at 491; Bolton, 950 S.W.2d at 271; see also sections 452.360.2, 452.325.2,
and 452.330.5.
Nevertheless, the trial court failed to enforce the Separation Agreement as part of the
Dissolution Judgment by awarding Wife damages instead of ordering the Chippewa properties to
be sold and the net proceeds of the sale to be equally divided between the parties, which was the
exclusive remedy for Husband’s failure to obtain Wife’s release provided for in the Dissolution
5 Judgment. We find the trial court’s action of eliminating Husband’s obligation to sell the
Chippewa properties after his failure to comply with the property distribution terms was
essentially a modification of the Separation Agreement as incorporated into the Dissolution
Judgment, which is strictly forbidden by section 452.330.5. See Schaffer, 847 S.W.2d 817
(similarly finding); see also 452.330.5 (a dissolution judgment’s provisions relating to the
distribution of marital property “shall be a final order not subject to modification”).
Accordingly, the trial court’s erroneous modification of the property division requires us to
reverse. See Schaffer, 847 S.W.2d at 917 (similarly finding).
Pursuant to the Dissolution Judgment:
[the Chippewa properties] shall be listed for sale at such list price as the parties shall agree, and the net proceeds of the sale, after payment of any indebtedness, real estate broker’s fees and closing costs, shall be equally divided between the parties. Should said listing fail to result in a sale of the [Chippewa properties] within 180 days from the entry of judgment, the list price shall be reduced to its then-appraised value according to the City of St. Louis Assessor’s Office, if less than the agreed list price, and the net proceeds of the sale, after payment of any indebtedness, real estate broker’s fees and closing costs, shall be equally divided between the parties.
Therefore, the trial court erred and misapplied the law by awarding Wife damages instead of
ordering the Chippewa properties to be sold and the net proceeds of the sale to be equally
divided between the parties, as required by the Dissolution Judgment. Thus, the trial court’s
judgment awarding Wife $9,600 in damages is reversed and the cause is remanded to the trial
court so that it can enter an order for the Chippewa properties to be listed for sale and for the net
proceeds of the sales to be equally divided between the parties in the manner provided for in the
Dissolution Judgment. 4 Point granted.
4 Neither party has appealed the portion of the trial court’s judgment awarding Wife her reasonable attorney’s fees in pursuing her motion to enforce, and thus, that portion of the judgment it not affected by our decision.
6 C. Wife’s Motion for Attorney’s Fees on Appeal
We now turn to Wife’s motion for attorney’s fees on appeal, which has been taken with
the case. Wife’s motion seeks attorney’s fees pursuant to the attorney’s fees provision in the
Separation Agreement and this Court’s Special Rule 400. 5
We may award a party her reasonable attorney’s fees on appeal if such fees are
authorized by a written agreement that is the subject of the issues raised in the appeal. Frontenac
Bank v. GB Investments, LLC, 528 S.W.3d 381, 397 (Mo. App. E.D. 2017); see also generally
LaBarca v. LaBarca, 534 S.W.3d 329, 338 (Mo. App. W.D. 2017) (attorney fee provisions in
separation agreements fall within the ‘contract’ exception to the American rule that parties pay
for their own attorney’s fees). In this case, the Separation Agreement provides:
In the event that either party to this Agreement brings an action for failure to perform any of the obligations imposed by the Agreement on him or her, or for enforcement or clarification of the Agreement, the prevailing party in such action shall have the right to recover his or her attorney’s fees and litigation costs reasonably expended in prosecuting or defending the action. However, no attorney’s fees shall be so recovered by a party filing an action unless that party seeking to recover said attorney’s fees and costs shall have mailed to the breaching party written notice of the alleged failure to perform, and said alleged failure was not cured within ten days after the date of mailing said notice by certified mail to the alleged breaching party’s business or residence address. No fees or costs authorized by this paragraph shall be recovered except as determined and awarded by the court in an action brought for enforcement, breach or clarification of the Agreement.
We find this appeal, in which Wife is the prevailing party, arises from her action to
enforce the Separation Agreement after Husband failed to perform his obligations relating to the
Chippewa properties. Further, Wife complied with the foregoing provision’s requirement that
she mail to Husband written notice of his failure to perform and Husband’s failure was not cured
5 This Court’s Special Rule 400 provides in relevant part: “Any party claiming an amount due for attorney’s fees on appeal pursuant to contract, statute or otherwise and which this court has jurisdiction to consider, must do so before submission of the cause.”
7 within ten days after the date of mailing said notice. Accordingly, we conclude attorney’s fees
on appeal are authorized by a written agreement that is the subject of the issue raised in this
appeal. See id.; see also Jamestowne Homeowners Ass’n Trustees v. Jackson, 417 S.W.3d 348,
359-60 (Mo. App. E.D. 2013) (finding attorney’s fees on appeal were authorized by written
agreement that provided for recovery of attorney’s fees expended in recovering payment, but did
not expressly mention appeals).
Under the circumstances of this case, we find it is appropriate for us to exercise our
authority to allow and fix the amount of attorney’s fees awarded for this appeal rather than
remanding the issue to the trial court. See Frontenac Bank, 528 S.W.3d at 397. Thus, Wife’s
motion for attorney’s fees on appeal is granted in the amount of $14,215.30.
III. CONCLUSION
Based on the foregoing, we hold that the trial court erred and misapplied the law by
awarding Wife damages instead of ordering the Chippewa properties to be sold and the net
proceeds of the sale to be equally divided between the parties. Therefore, the trial court’s
judgment awarding Wife $9,600 in damages is reversed and the cause is remanded to the trial
court for further proceedings in accordance with this opinion. In addition, Wife’s motion for
attorney’s fees on appeal, which was taken with the case, is granted in the amount of $14,215.30.
ROBERT M. CLAYTON III, Judge
Lisa P. Page, C.J., and Roy L. Richter, J., concur.