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08/09/83 DELORES ALVINO v. PIETRO THOMAS ALVINO

August 9, 1983

DELORES ALVINO, PETITIONER-RESPONDENT,
v.
PIETRO THOMAS ALVINO, RESPONDENT-APPELLANT, AND ANNA ALVINO, THIRD PARTY DEFENDANT-APPELLANT.



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge Anna C. Forder; Reversed and Remanded With Directions

Before Pudlowski, P.j., Smith, Kelly, JJ.

The opinion of the court was delivered by: Pudlowski

This is a consolidated appeal from a dissolution of marriage by Pietro Thomas Alvino, appellant, contesting the division of marital property and the awarding of attorney fees and by Anna J. Alvino, third-party defendant/appellant, contesting the divestment of property titled in her name. We reverse and remand.

Pietro Alvino, appellant, and Delores Alvino, respondent, were married on September 14, 1946. Eleven children were born of this marriage. By 1976, the relationship between the Alvinos had deteriorated. It was stipulated at trial that their marriage was irretrievably broken.

The trial for dissolution was conducted over eight different days from January 28, 1980 through March 19, 1981. Anna Alvino, the mother of Pietro Alvino, was made a party to her son's dissolution proceeding on September 30, 1980. At that time, the trial court ordered a transcript prepared. The transcript was completed on February 20, 1981. Trial was resumed on March 18, 1981. Respondent alleged as the basis for joinder that Anna Alvino was a necessary party because more than $45,000 of alleged marital property had been transferred to her subsequent to the filing of the dissolution of marriage and further that this sum was now held by Anna in her name alone.

During the marriage, Pietro Alvino was employed by Southwestern Bell Telephone Company. The comptroller supervisor of payroll at Southwestern Bell testified that Pietro's net salary at the time of trial was $1,123.04 per month. In addition, Pietro worked at various part-time jobs throughout the marriage. Delores Alvino, at times, also worked outside the home. However, it was Pietro who controlled the finances in the household.

In relation to his employment, Pietro was presently eligible to retire from the telephone company and begin receiving monthly pension payments in the amount of $625.07. Payments under the pension plan were contingent upon Pietro being retired from his employment. As long as he continued to work for the telephone company, Pietro was not eligible for any payments, nor would his estate be entitled to any benefits in the event of Pietro's death before his retirement. Further, the pension plan automatically provides the employee with 90 percent of the total benefit to be paid unless the employee elects otherwise.

In its decree of dissolution, the trial court determined the pension plan to be marital property and awarded it to Pietro. This award was an attempt by the court to arrive at an equal division of assets between Pietro and Delores. In addition, the court awarded Delores the sum of $500 per month as maintenance and $200 per month for each of two minor children as child support. The court also granted judgment against Pietro in favor of three doctors and a private educational institution. Lastly, the court concluded that the money held in Anna Alvino's name was marital property belonging to Pietro and Delores and as such divested Anna Alvino of all interest. This appeal follows.

I

Third party defendant/appellant, Anna Alvino, raises two points on appeal: (1) whether the trial court erred in divesting her of interest in accounts at various financial institutions by depriving her of a reasonable opportunity to cross-examine and confront testimony and exhibits introduced into evidence; and (2) whether there was substantial evidence to support the proposition that said accounts were in fact marital property belonging to Pietro and Delores Alvino. We resolve these alleged errors by disposing of the first issue.

The dissolution action between Delores and Pietro Alvino was heard over the course of nine months in 1980 on eight different days commencing on January 28, 1980. From the beginning, a major portion of respondent's case concerned assets standing in the name of Anna J. Alvino. Respondent adduced evidence tracing the ownership and control of several bank accounts belonging to Anna in an attempt to prove that said accounts were marital property and subject to distribution by the court. She sought to have the court award her this property.

Respondent rested her case having introduced into evidence more than 50 exhibits, the vast majority of which dealt with Anna Alvino's property. Respondent testified that she claimed an interest in bank accounts in Anna J. Alvino's name. However, respondent waited until August, 1980, to join Anna Alvino as a third party.

On March 17, 1981, Anna Alvino moved for a mistrial because the evidence before the court to adjudicate her interest in said property had been adduced in her absence without notice or opportunity to defend same. The motion was denied. The action complained of by appellant, Anna Alvino, is more accurately described as the denial of Anna's motion for a mistrial. We shall proceed upon that basis.

Generally, all parties interested in the subject matter of litigation should be joined. It is beyond dispute that the trial court was obligated under Rule 52.04 to join Anna Alvino as a party after it became apparent that she held title to certain assets at issue in the dissolution ...


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