Whittier v. Whittier

734 S.W.2d 949, 1987 Mo. App. LEXIS 4504
CourtMissouri Court of Appeals
DecidedAugust 4, 1987
DocketNo. 14875
StatusPublished
Cited by4 cases

This text of 734 S.W.2d 949 (Whittier v. Whittier) 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
Whittier v. Whittier, 734 S.W.2d 949, 1987 Mo. App. LEXIS 4504 (Mo. Ct. App. 1987).

Opinion

CROW, Chief Judge.

Hilda M. Whittier (“Hilda”) appeals from a decree dissolving her marriage to Charles M. Whittier (“Charles”). She briefs three assignments of error, each of which attacks the trial court’s finding that the par[951]*951ties’ separation agreement is not unconscionable.

The statement of facts, Rule 84.-04(c),1 in Hilda’s brief contains several averments unsupported by the record on appeal, Rule 81.12(a). In this opinion, we confine our attention to the evidence of record before the trial court, First National Bank of Carrollton v. McClure, 666 S.W.2d 434, 436[1] (Mo.App.1983), pertinent to the points relied on by Hilda.

On June 2, 1986, Hilda and Charles appeared in the trial court with their respective attorneys.2 Hilda filed a 3-page “Income and Expense Statement,” and a 3-page “Financial Statement.” Charles likewise filed a 3-page “Income and Expense Statement,” and a 3-page “Financial Statement.”

The trial court announced it had been advised that the parties had “resolved the matter,” and that they would be testifying “to the oral property settlement agreement.”

Hilda was thereupon sworn, and testified, among other things, that she and Charles were married March 23, 1957, that they separated January 6, 1986, and that the three children born to them were emancipated. Then, this:

“Q. Now, earlier this morning, prior to court commencing a few moments ago, I’d like to ask you whether or not you and Mr. Whittier, by and through your respective attorneys, and you also, were involved in the negotiations, have reached a negotiated settlement with regard to disposition of property which was acquired during the marriage?
A. Yes.”

Hilda was then asked, and she answered, 30 questions, establishing that she and Charles had reached the following agreement.

Marital Property

Hilda was to receive the marital home and 15 acres. Her financial statement valued this asset at $250,000; Charles’ financial statement valued it at $450,000. A 3-page document captioned “Marital Assets,” offered in evidence by Hilda, and received by the trial court as Petitioner’s Exhibit 1, showed that the property was subject to an encumbrance of $31,904.17. Hilda testified she was to assume that debt. We henceforth refer to this property as Tract 1.

Hilda was also to receive a “house in Climax Springs.” Her financial statement valued it at $30,000; Charles’ financial statement valued it at $18,000. Hilda testified there was no encumbrance thereon. We henceforth refer to this property as Tract 2.

Additionally, Hilda was to receive an “office building in Climax Springs,” which her financial statement valued at $24,700, and Charles’ financial statement valued at $30,-000. Petitioner’s Exhibit 1 showed a lien of $261.93 on that property, henceforth referred to as Tract 3. Hilda was to assume that debt.

Besides the real estate, Hilda was to be awarded the following “notes receivable” listed on Petitioner’s Exhibit 1.

Maker Amount Due
Charles Lederman (note and deed of trust) $36,817.81
Ken McCoy (note and contract) 18,498.45
Bonnie Anderson (note) 508.22
Lawrence Redden (note and deed of trust) 13,300.74
Rays Diggins, Inc. 784.00

These five notes total $69,909.22.

Hilda testified she was also to receive a corporation, Pine Cone Real Estate, Inc., which was “basically” her business. Petitioner’s Exhibit 1 assigned that asset a value of $10,000. Charles’ financial statement showed the value “Unknown.”

Furthermore, said Hilda, she was to receive the items listed below. The figures in the column “Hilda’s Value” appeared in Petitioner’s Exhibit 1. The figures in the column “Charles’ Value” appeared in Charles’ financial statement.

[952]*952Hilda’s Charles’
Item Value Value
Household furnishings $2,000 $4,000
1983 Chevrolet 9,000 9,000
300 shares, Colorado Life Ins. Co. None Unknown
John Deere garden tractor & mower 2,000 1,500
Half interest, "cruiser boat" 2,000 2,500
Mark Twain inboard-outboard runabout 1,500 1,000

According to Petitioner’s Exhibit 1, the Chevrolet was encumbered by a lien of $8,500.

Finally, Hilda was to receive a garden tiller and a planer and bench saw. We find no value assigned by either party to those items.

Charles, according to Hilda, was to receive 32 head of cattle, which had been sold prior to the date of the hearing. Neither Hilda nor Charles assigned a value to the cattle.

Charles was also to receive the personal property listed below. The figures in the column “Hilda’s Value” appeared in Petitioner’s Exhibit 1. The figures in the column “Charles’ Value” appeared in Charles’ financial statement. Where a value was not assigned, the term “omitted” so indicates.

Hilda’s Charles’
Item Value Value
1982 Chevrolet pickup with overhead camper & shell camper $7,000 $4,000
2 mules, 2 horses omitted 500 '
Farmall tractor omitted 300
Allis Chalmers tractor omitted 300
riding lawn mower omitted 50
1983 Ford LTD automobile 13,000 6,000
power tools, hand tools omitted 400
guns omitted omitted
horse trailer omitted omitted
saddles and tack omitted 200
aluminum fishing boat & motor 200 150

According to Charles’ financial statement, the 1983 Ford LTD was encumbered by a lien of $3,800. Hilda testified Charles was to assume that debt.

Finally, Charles was to receive from Hilda a $5,000 cash payment “prior to the end of this week,” and a $190,000 cash payment within four months after the date of the hearing.

Hilda’s Separate Nonmarital Property

Hilda explained that she was to receive, as her separate property, four lots in El Paso County, Colorado, together with the “Sandy Beach property.” A 2-page document captioned “Separate Assets of Petitioner,” offered in evidence by Hilda, and received by the trial court as Petitioner’s Exhibit 2, valued the four Colorado lots, in the aggregate, at $90,000, and valued the Sandy Beach property at $25,000. These properties, according to Exhibit 2, were lien-free.

Hilda was also to receive as her separate property the “Muir note” valued at $7,932.91, a 1969 Cadillac valued at $200, the “Paine Webber Cash Fund” valued at $12,150, and four $1,000 certificates of deposit.

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800 S.W.2d 120 (Missouri Court of Appeals, 1990)
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Bluebook (online)
734 S.W.2d 949, 1987 Mo. App. LEXIS 4504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whittier-v-whittier-moctapp-1987.