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10/01/93 MARRIAGE DONALD LEE PFEIFER AND SANDRA SUE

October 1, 1993

IN RE THE MARRIAGE OF DONALD LEE PFEIFER AND SANDRA SUE PFEIFER. DONALD LEE PFEIFER, RESPONDENT,
v.
SANDRA SUE PFEIFER, APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF CEDAR COUNTY. Honorable Dennis D. Reaves, Associate Circuit Judge

Crow, Prewitt, Garrison

The opinion of the court was delivered by: Crow

On September 10, 1991, Donald Lee Pfeifer filed a petition to dissolve his marriage to Sandra Sue Pfeifer, whom he had wed November 3, 1962. Donald *fn1 and Sandra signed a separation agreement January 15, 1992. Later that day, Donald appeared in the trial court with his lawyer. Sandra did not appear -- she had filed nothing in response to Donald's petition. The trial court heard testimony by Donald and entered a decree dissolving the marriage. The decree approved the separation agreement, incorporated it into the decree, and ordered the parties to perform its provisions.

Nine months later, on October 14, 1992, Donald filed a motion praying the trial court to hold Sandra in contempt because she refused to execute a quitclaim deed to him for the marital real estate he was to receive pursuant to the separation agreement and decree.

Sandra countered with a motion to set aside the separation agreement and decree per Rule 74.06(b). *fn2

On November 30, 1992, the trial court heard evidence on Sandra's motion. At the Conclusion of the hearing, the trial court entered an order denying the motion. The order reads, in pertinent part:

The Court finds that has failed to meet her burden of proof to set aside the property settlement agreement and judgment entered herein on January 15, 1992.

Further, the Court finds that there is no just cause for delay and designates this Order as a final and appealable Order. *fn3

Sandra appeals. Her sole point relied on is:

The court erred in failing to set aside the property settlement and judgment entered thereon . . . as met her burden of proof of showing she signed the property settlement because of the misconduct and fraud, both extrinsic and intrinsic of , as follows: (1) he concealed and kept from the total financial situation of the parties (2) he made promises to that he would take care of her, and (3) he threatened her with bankruptcy, the loss of the family farm, and the ruination of her sons, if she contested the dissolution.

The point presents three numbered allegations of fact. We address them in the order presented.

As to allegation "(1)," Sandra points out the separation agreement did not provide for division of all marital property, specifically: (a) cattle, (b) bank accounts, and (c) a pending lawsuit by Donald against a real estate broker. Additionally, says Sandra, the agreement did not contain a provision whereby she affirmatively waived maintenance.

Before addressing allegation "(1)," we consider whether the failure of the separation agreement, and consequently the decree, to dispose of items "(a)," "(b)" and "(c)" in the preceding paragraph affects the decree's finality. That question is answered by State ex rel. McClintock v. Black, 608 S.W.2d 405 (Mo. banc 1980). There, some seven months after entry of a decree of dissolution, the ex-wife filed a motion to vacate it, contending certain marital property had not been distributed by the decree, hence it was not final. The Supreme Court of Missouri held:

Once the time for appeal has run, the order of the trial court, although it has failed to divide all of the marital property, is res judicata and final as to ...


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