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08/19/93 PRISCILLA DALE DUKES v. GERALD ERNEST

August 19, 1993

PRISCILLA DALE DUKES, PLAINTIFF-APPELLANT
v.
GERALD ERNEST DUKES, DEFENDANT-RESPONDENT



APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY. Honorable John Wiggins, Judge

Shrum, Parrish, Montgomery

The opinion of the court was delivered by: Shrum

Appellant, Priscilla Dale Dukes (wife), filed an action in equity against her former husband, Gerald Ernest Dukes (husband). Claiming that the husband's non-disability military pension was omitted from the parties' October 15, 1982, dissolution decree through accident or mistake, the wife sought to have the trial court divide and award to her a proportionate share of that pension. Her request was rejected and this appeal followed. We affirm.

FACTS

The parties were married on December 5, 1964. Their marriage was dissolved on October 15, 1982. From April 1968 until January 1990, when he retired, the husband was on active duty with the United States Armed Forces. Thus, he served 14.5 years in the military while married to the wife.

The parties' October 1982 dissolution decree approved a "Separation and Property Settlement" agreement that had been signed by them. The decree provided that "all property and property rights adJudged and settled per the agreement . . . ." In the agreement the parties recited, "There is no non-marital property to be divided . . . ." They then listed and divided marital property without specific mention of the husband's non-disability military retirement pension. Consequently, neither the decree nor the separation agreement mention the pension, either as marital or non-marital property, nor do they specifically set aside or divide the husband's pension.

The agreement does contain a paragraph V entitled "Terms To Be Incorporated In Decree And Restrictions On Modification." Among its many provisions is the following:

B. MUTUAL RELEASES:

1. The Wife, in consideration of the covenants, conveyances, payment, agreements and obligations herein made, assumed and agreed to by Husband, hereby accepts same and acknowledges same to be in full and complete satisfaction of any and all claims, demands of whatsoever nature, both legal and equitable, which she has against the Husband and his property, except the alleged cause of action for dissolution and the covenants and agreements herein provided to be performed by Husband, and agrees that Husband is fully and finally released and discharged from any and all claims, demands, and marital and statutory rights on the part of the Wife against him and his property, save and except those herein set forth to be performed by Husband.

Following the husband's retirement in 1990, the wife filed this case seeking equitable relief. In her equity case she alleged that in the October 15, 1982, dissolution decree and separation agreement "the [husband's] military pension . . . was not listed as marital property . . . and was not divided by the Court. . . ." Additionally she pled that the "omission of the [husband's] . . . pension from the [1982] Decree . . . and the resultant failure to award that asset was the result of accident and mistake."

After all evidence was adduced the trial court rendered a judgment adverse to the wife's claim for equitable relief. In doing so the trial court assigned the following as the reasons for its decision:

The court finds from the evidence that at the time of the dissolution, [the wife] was informed that defendant's military pension was marital property and that there is no evidence to support the proposition that the omission of such property from the settlement agreement or the decree of dissolution was the result of fraud, mistake or accident;

THE COURT FURTHER FINDS, from the evidence that plaintiff specifically waived her rights in said pension through the execution of the property settlement agreement for she knew at the time it was executed that said pension was marital asset yet chose not to have any interest therein claimed or divided by said agreement;

FURTHER, and more importantly, plaintiff's claim is barred by Section 516.120[4] . . . the five year statute of limitations for the recovery of personal property.

This appeal followed.

DISCUSSION AND DECISION

In the argument portion of Point III of her brief the wife takes the position that on October 15, 1982, the husband's military pension was non-marital property as a matter of law. *fn1 She points out that when "the marriage of the parties was dissolved on October 15, 1992, McCarty, *fn2 was still in effect and as of the date of the dissolution the pension was not subject to division." *fn3 Continuing, she says that at the time the separation agreement was signed and was incorporated into the decree with the approval of the trial court, "neither the parties, nor the trial court had the authority or jurisdiction to divide the military pension or consider it marital property." *fn4 We agree with what the wife has said in this regard.

Before June 26, 1981, it was well settled in Missouri that non-disability military retirement pay was marital property in which a spouse could share. In re Marriage of Quintard, 691 S.W.2d 950, 952 (Mo.App. 1985) (citing Sink v. Sink, 669 S.W.2d 284, 285 (Mo.App. 1984)). The law concerning military pensions changed, albeit temporarily, when on June 26, 1981, the United States Supreme Court decided McCarty. The McCarty court held that in a divorce case, federal law precluded a state court from ...


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