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In re Estate of Heil

Court of Appeals of Missouri, Western District, Special Division

February 6, 2018

IN THE ESTATE OF JOHN DAVID HEIL, Respondent,
v.
MARILYN HEIL, Appellant.

         Appeal from the Circuit Court of Carroll County, Missouri The Honorable Kevin L. Walden, Judge

          Before: Zel M. Fischer, Special Judge, Presiding, Cynthia L. Martin, Judge and Gary D. Witt, Judge

          Cynthia L. Martin, Judge

         Marilyn M. Heil ("Ms. Heil") appeals from the trial court's June 30, 2015 judgment denying her election to take a spousal share of decedent John David Heil's ("Decedent") estate as against the provisions of Decedent's will. Ms. Heil claims that the trial court erred because there was no evidence of marital misconduct to support the denial of her claim. Because Ms. Heil abandoned Decedent without reasonable cause as anticipated by section 474.140, [1] we find no error and affirm.

         Factual and Procedural Background[2]

         Decedent died on May 14, 2014. Decedent's will was admitted to probate by Donald Heil ("Son"), the personal representative named in the will. Decedent's will expressed Decedent's intent to leave the entirety of his estate to Son. After Decedent's will was admitted to probate, Ms. Heil filed notice of election to take a spousal share of Decedent's estate pursuant to section 474.160. Son raised the affirmative defense of abandonment pursuant to section 474.140. The trial court considered the pleadings and evidence submitted by the parties, and entered its Findings of Fact, Conclusions of Law and Judgment on June 30, 2015 ("Judgment"). Ms. Heil concedes that the findings of fact set forth in the Judgment are supported by the evidence, and adopts the findings as her own. [Appellant's Brief, p. 2]

         Ms. Heil and Decedent were married on June 21, 1968. They lived together in their marital home in Norborne, Missouri for many years. In the 1990's, Decedent spent more and more time at the residence of his parents on a farm outside of Norborne, until he suffered a heart attack in 1997, after which he returned to the marital home to rehabilitate.

         Sometime prior to 1999, Decedent moved from the marital home back to his parents' farm. After Decedent's mother's death in 1999, Decedent became the owner of his parents' farm, and refused to move back to the marital home.

         In an effort to salvage their marriage, Ms. Heil moved from the marital home to the farm in the summer of 1999. Decedent and Ms. Heil did not enjoy a warm, loving, affectionate, or supportive relationship. However, the trial court found that Decedent's treatment of Ms. Heil did not rise to a level that Ms. Heil could no longer reasonably be expected to live with Decedent.

         In the fall of 2000, Ms. Heil voluntarily moved from the farm back to the marital home. Ms. Heil's move was not requested by Decedent, but Decedent acquiesced in the move.

         From and after the fall of 2000, Ms. Heil visited Decedent very infrequently and primarily for business reasons or to bring grandchildren to see Decedent. From and after the fall of 2000, neither Ms. Heil nor Decedent provided the other with domestic, financial or emotional support. Ms. Heil did not support or care for Decedent during his several illnesses, which included a subsequent heart attack, Alzheimer's disease, and prostate cancer. Eventually, Decedent fell and broke his hip, requiring his admission into a nursing home. Ms. Heil visited Decedent one or two times while he was in the nursing home, and spent only a few minutes with him when he was near death. When Son sought Ms. Heil's assistance in caring for Decedent, Ms. Heil responded by giving Son a phone number for a potential caregiver.

         Neither Decedent nor Ms. Heil took steps to terminate their marriage or to legally separate. The trial court found that neither Decedent nor Ms. Heil committed adultery or marital misconduct. However, they lived separately and apart for several years preceding Decedent's death. The trial court found that for all intents and purposes, the marriage between Decedent and Ms. Heil did not exist from and after the fall of 2000, and that Ms. Heil made no attempts to pursue or cultivate a marital relationship with Decedent. Based on these facts, the trial court found that Ms. Heil intended to abandon Decedent and the marital relationship. The Judgment thus concluded that Ms. Heil was disqualified pursuant to section 474.140 from electing to take her spousal share against Decedent's will.

         Ms. Heil appealed the June 30, 2015 Judgment to this court on July 29, 2015. By Order dated December 15, 2015, we dismissed Ms. Heil's appeal as untimely. We observed that the Judgment, an interlocutory probate court order, was final immediately upon its entry, and that Ms. Heil's permissive right of appeal pursuant to section 472.160 required a notice of appeal to be filed within ten (10) days of the Judgment's entry. However, though Ms. Heil's permissive appeal was not timely filed, she remained entitled to appeal the interlocutory Judgment following final settlement of Decedent's estate. See In re Kraus, 318 S.W.3d 274, 277 (Mo. App. W.D. 2010). The trial court entered its order approving a final settlement of Decedent's estate on May 9, 2017. Ms. Heil filed this timely appeal from the Judgment on May 11, 2017.

         Standard ...


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