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Greene v. Greene

Court of Appeals of Missouri, Eastern District, Second Division

September 17, 2019

SCOTT GREENE, Appellant,
v.
MARIETTA GREENE, Respondent.

          Appeal from the Circuit Court of St. Charles County 1811-CC00026 Honorable Jon A. Cunningham

          OPINION

          LISA P. PAGE, JUDGE

         Scott 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.

         BACKGROUND

         The 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."

         As a 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.

         DISCUSSION

         Appellant 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.

         Standard of Review

         Our 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.

         Analysis

         In his 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.[1]

         Ultimately 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.

         In his second point, Appellant claims the trial court erred in finding a fair rental value for the residence because there was ...


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