VonSande v. VonSande

858 S.W.2d 233, 1993 Mo. App. LEXIS 1020, 1993 WL 242128
CourtMissouri Court of Appeals
DecidedJuly 2, 1993
Docket18276
StatusPublished
Cited by12 cases

This text of 858 S.W.2d 233 (VonSande v. VonSande) 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
VonSande v. VonSande, 858 S.W.2d 233, 1993 Mo. App. LEXIS 1020, 1993 WL 242128 (Mo. Ct. App. 1993).

Opinions

GARRISON, Judge.

Dianne YonSande (Wife) appeals the trial court’s granting of Herman YonSande’s (Husband) motion for new trial in a dissolution of marriage action. For the reasons stated in this opinion, we reverse the trial court’s order and reinstate the judgment.

This case commenced in November, 1988, when Wife filed a petition for legal separation. In response, Husband filed an answer and cross-petition for dissolution of marriage. The parties had been married twenty-one years and had five children, one of whom was then emancipated. By the time this case was tried and a judgment was entered, two others had become emancipated.

Multiple events occurred to delay resolution of this case. Trial was originally requested on August 21, 1989, and it was set January 8, 1990. It was not tried at that time for reasons which are not apparent from the record. On June 12, 1990, the judge disqualified himself and a new judge [235]*235was assigned on June 29, 1990. The case was again set for trial on December 14, 1990, but again was not tried for unexplained reasons. Thereafter, it was reset for April 26, 1991, but on that date the court appointed a guardian ad litem for the minor children and the case was continued. Trial of the case finally commenced October 17, 1991. On the second day of trial, Wife’s attorney reported that he was ill and the case was continued for resetting. Trial continued on December 2, 1991 and again on December 9, 1991, at which time the case was taken under advisement by the court. On May 5,1992, the court made its Findings Of Fact and Conclusions Of Law and entered its Judgment by which it dissolved the marriage, awarded custody of the two minor children to Wife, awarded no maintenance or attorney’s fees to either party, ordered Husband to pay child support, entered a judgment in favor of Wife in the amount of $55,000, and divided the marital property. Included in the marital property set aside to Husband was a 333-acre farm valued at $90,000 and river property with a net value of $1,500.

On May 20, 1992, Husband filed a motion for new trial. One paragraph of that motion alleged:

7. That the Court met with the Respondent [sic] in Camdenton, Missouri prior to rendering it’s [sic] verdict herein without any counsel or the other party being present and this knowledge came to Respondent by Petitioner’s children, and further by his observance and that this appearance of impropriety has disqualified the Court from making a judgment herein.

On the same day he filed his motion for new trial, Husband conveyed the farm by quit claim to himself and some of his children. Eight days later, he recorded an undated, notarized warranty deed conveying the river property to Herman Von-Sande and Edith VonSande, husband and wife.

On June 11, 1992, evidence was taken in connection with the motion for new trial. At that time, it was revealed that at some point after the case was taken under advisement Wife had gone to the courthouse in Camdenton, Missouri, with the hope that the judge would see her, recognize her, and be reminded that her case was pending. Her attorney had advised against attempting to communicate with the judge so she said nothing to him when she saw him in the hall. The trial judge stated that he did not remember even seeing Wife in Camden-ton after the trial.

The record further indicates that on May 1, 1992, four days before the decree was signed, Wife went to the judge’s office in another county, against the advice of her attorney. In response to the court’s questions, Wife testified:

I just told him, if we don’t hear anything, I’m going to drive down and let you look at me and see if you realize we’re still alive.

When asked what she said to the court, she said:

I told him I wanted to know if anything was being done, that we did exist, and that the kids were asking questions and I needed to tell them something.

The judge immediately called both attorneys, telling them that Wife was in his office. He then told Wife that he had decided the case, the decree was in the process of being finished, and he showed her a screen on his computer containing the caption of the case and date. She was not shown, nor was there any discussion about, the contents of the decree. Likewise, there is no evidence that Wife said anything that could be interpreted as being an attempt to influence the court’s decision or the contents of the decree. When asked what happened after she saw the screen of the computer, Wife said:

“I left. I told him I’m sorry I came in, but I just wanted him to know that we existed and was wondering if it was getting done.”

The trial court, on July 7, 1992, entered its Supplemental Findings Of Fact and Conclusions Of Law by which it found that Wife’s contacts with the court were improper, and that while they had no effect on the decree they created the appearance [236]*236of impropriety.1 The court then set aside its May 5, 1992 judgment and disqualified himself.

Wife raises two points on this appeal: (1) the trial court erred in setting aside its judgment on the basis of an appearance of impropriety because there was no substantial evidence to support it, it erroneously declared and applied the law, and it constituted an abuse of discretion because the only contact with the court involved no discussion of the merits and had no effect on the court’s decision because the decree had already been prepared; (2) Husband should not be heard in support of the trial court's order setting aside its judgment because he accepted the benefits of that judgment and conveyed marital real estate awarded to him. We believe this case is determined by Point I and we, therefore, do not reach Point II.

The trial court has broad discretion in awarding a new trial, the exercise of which will not be disturbed unless that discretion was abused, particularly in cases tried without a jury. Tuffli v. Board of Education of Wentzville R-4, 643 S.W.2d 296, 297 (Mo.App.1982). See also Long v. Stilwell Homes, Inc., 333 S.W.2d 103, 106 (Mo.App.1960). While appellate courts are more liberal in upholding the sustaining of a motion for new trial than in denying it, nevertheless, error complained of must be prejudicial to the party seeking the new trial. Roux v. City of St. Louis, 690 S.W.2d at 450.

The Motion For New Trial filed by Husband in the instant case was neither verified nor self-proving. See AlSadi v. AlSadi, 823 S.W.2d 123 (Mo.App.1992); and Tuffli v. Board of Education of Wentzville R-4, supra. The basis for a new trial must appear from the record. Grant v. Estate of McReynolds, 779 S.W.2d 246, 247 (Mo.App.1989). Since paragraph 7 of the motion (the paragraph upon which the motion was sustained) was based on matters outside the record, the burden was on Husband to provide evidence supporting those allegations. Whitlock v. Whitlock, 395 S.W.2d 468, 472 (Mo.App.1965).

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VonSande v. VonSande
858 S.W.2d 233 (Missouri Court of Appeals, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
858 S.W.2d 233, 1993 Mo. App. LEXIS 1020, 1993 WL 242128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vonsande-v-vonsande-moctapp-1993.