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08/23/83 MARILYN G. PRAUGHT A/K/A MARILYN G.

August 23, 1983

MARILYN G. PRAUGHT A/K/A MARILYN G. CARPENTER, PLAINTIFF-APPELLANT,
v.
RAYMOND L. CARPENTER, DEFENDANT-RESPONDENT.



From the Circuit Court of the City of St. Louis; Civil Appeal; Judge James J. Sanders.

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

The opinion of the court was delivered by: Pudlowski

This is an appeal from a jury tried case denying appellant recovery on an alleged repudiation and breach of a support contract. Appellant alleges trial court error in submitting a converse jury instruction that was not substantially in the same language as the verdict director and trial court error in admitting into evidence that respondent made more payments than were required under the support contract. We affirm.

In September 1962, appellant, Marilyn G. Praught, and respondent, Raymond L. Carpenter, became engaged. The couple began to live together and two children were born to the parties though they never married. In April 1969, the parties entered into a written agreement by which it was agreed that respondent would make the mortgage payments on the house owned jointly by the parties, make all tax payments on the real estate and pay $300 per month toward the support of the children. Appellant agreed to raise the children, provide for their education and general welfare and to provide visitation and temporary custody to the father.

In regard to the child support payments, evidence adduced by both parties indicated that shortly after the agreement had been signed, respondent on his own initiative increased the child support payments to $500 per month. This increased payment continued until April or May 1981, when respondent terminated his performance under the contract. Subsequently, appellant filed a cause of action alleging that respondent breached the contract. When the cause came to trial, appellant moved that the court withdraw from the jury all considerations about purported evidence of excess payments. The trial court denied appellant's motion. The jury subsequently returned a verdict in favor of respondent. This appeal follows.

Appellant contends that the trial court erred in submitting to the jury a converse instruction that was not substantially in the same language as the verdict director and as a result was prejudically confusing and misleading to the jury.

The verdict director submitted by appellant followed the form of MAI 26.06 and was stated as follows:

Your verdict must be for plaintiff if you believe:

First, plaintiff and defendant entered into an agreement whereby plaintiff agreed to raise the parties' two children to the best of her ability and to provide for their education and general welfare, and defendant agreed to make all monthly mortgage, support and other payments as set forth in the parties' agreement dated April 15, 1969, and

Second, plaintiff performed her agreement, and

Third, defendant failed to perform his agreement, and

Fourth, plaintiff was thereby damaged: unless you believe plaintiff is not entitled to recover by reason of Instruction Number 6.

Respondent's Instruction Number 6 stated:

Your verdict must be for the defendant if you believe: That plaintiff breached the agreement by failing to ...


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