Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Charles County 1811-CC00026
Honorable Jon A. Cunningham
P. PAGE, JUDGE
Greene ("Appellant") appeals the trial court's
judgment ordering the sale of the marital residence and
equally dividing the proceeds between Appellant and Marietta
Greene ("Respondent") after expenses and debt. We
reverse and remand.
marriage of Appellant and Respondent was dissolved in 2008.
The judgment of dissolution granted Appellant exclusive
possession of the marital home and ordered it sold. The
judgment further ordered, "[u]ntil the marital residence
is sold, Appellant shall have exclusive possession of the
home and shall each be responsible for the monthly mortgage
payment . . . ." In 2015, after years of disagreement,
Appellant filed a motion in the family court for amounts due
and owing, seeking reimbursement for the mortgage payments he
had made since 2008. On July 12, 2017, the court entered an
order and judgment finding the dissolution judgment was
"ambiguous, indefinite, and therefore, unenforceable
with regards to the disposition of the residence." The
court further found it was without jurisdiction to modify the
dissolution judgment and dismissed the case, specifically
stating, "a suit in equity must be filed by either or
both of the parties in order for the Court to fairly and
equitably dispose of the marital home."
result, Appellant filed a petition in equity. The trial court
entered judgment ordering the residence be sold, equally
dividing the proceeds from the sale between Appellant and
Respondent after deducting the expenses of the sale and the
outstanding mortgage debt. The court awarded Appellant repair
and improvement costs of $15, 032.00 and $1, 000.00 for any
inconvenience to Appellant for the sale. This appeal follows.
asserts three points on appeal. In point one, he claims the
trial court erred in disposing of the marital residence
because the parties' mistake was one of law; therefore,
there were no grounds for a suit in equity. In point two,
Appellant argues the trial court erred in finding a fair
rental value for the residence because there was no
substantial evidence to support such a value. In his third
and final point on appeal, Appellant claims the court erred
in dividing the net sale proceeds equally because doing so
led to an inequitable result.
review of the trial court's judgment is governed by
Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We
will sustain the judgment unless there is no substantial
evidence to support it, it is against the weight of the
evidence, or it erroneously declares or applies the law.
Id. at 32. We will only set aside a judgment as
against the weight of the evidence if we have the firm belief
the judgment is wrong. Id.
first point on appeal, Appellant claims the trial court erred
in disposing of the residence because the parties'
mistake was one of law due to the family court's
erroneous conclusion as to the validity and enforceability of
the terms of the dissolution regarding the residence.
Appellant contends this cannot serve as the basis for a suit
in equity. But Appellant's argument ignores the fact that
he filed the petition in equity seeking disposition of the
marital residence, albeit at the family court's
direction. The family court based its conclusion that it was
somehow divested of jurisdiction because the dissolution
judgment lacked a specific date by which the residence had to
be sold. See Carter v. Carter, 436 S.W.3d 240 (Mo.
App. 2013); Kelly v. Kelly, 340 S.W.3d 673 (Mo. App.
W.D. 2011). However, Appellant did not appeal the dismissal
of his family court cause of action.
Appellant filed this petition in equity. He cannot now
complain on appeal about an alleged error which he created
with his own pleadings. Ratcliff v. Sprint Missouri,
Inc., 261 S.W.3d 534, 545 (Mo. App. W.D. 2008). Point
one is denied.
second point, Appellant claims the trial court erred in
finding a fair rental value for the residence because there