Case Style: Ida M. Richardson, Respondent,
v. Joseph A. Richardson, Appellant.
Case Number: SC87641
Handdown Date: 03/20/2007
Appeal From: Circuit Court of the City of
St. Louis, Hon. Thomas J. Frawley
Counsel for Appellant: C. John Pleban and
Talmage E. Newton, IV
Counsel for Respondent: Elizabeth H.
This summary is not part of the opinion of
the Court. It has been prepared by the Communications Counsel for the
convenience of the reader. It has been neither reviewed nor approved by the
Supreme Court and should not be quoted or cited. The opinion of the Court,
which may be quoted, follows the summary.
Before the December 1997 dissolution of their marriage, Joseph and Ida
Richardson executed a separation agreement, which they agreed would be
incorporated into the dissolution decree. The separation agreement provided
that Husband would pay Wife $2,425 per month in maintenance until either
Wife remarried or either party died. The agreement stated, in part, that its
terms "shall not be subject to modification or change, regardless of the
relative circumstance of the parties." The trial court incorporated this
agreement into its dissolution judgment and decree and specifically stated
that maintenance was not modifiable. In 2004, Husband filed a motion to
modify the judgment. In Count II of his motion, he sought to terminate his
maintenance obligation, alleging his ex-wife had sought out someone to
burglarize his home and had attempted to hire someone to murder him. He
alleged his ex-wife, therefore, breached their separation agreement and
waived her claim to maintenance. The trial court dismissed Count II, finding
Husband failed to state a claim on which relief may be granted. Husband
Court en banc holds: (1) This case is controlled by section 452.325,
RSMo 2000, which permits parties to a dissolution to enter into a written
separation agreement providing for the maintenance of either of them and
makes such terms of a separation agreement binding on the trial court unless
the court finds the agreement is unconscionable. The court here found the
agreement to be conscionable. Neither the agreement, nor the dissolution
decree, nor the statute authorizes a court to modify the terms of the
agreement or decree because of changed circumstances, and there is no ground
justifying a departure from applying the statute here.
(2) Section 452.325(4) requires the court to determine – before it enters
the judgment decree, not after – if the terms of a separation are not
unconscionable. There is no authority in the dissolution statutes for a
court to revisit the issue of conscionability at any time after the decree
is entered. This parallels contract law, which requires that conscionability
be addressed at the time the contract is made, not thereafter. The cases
Husband cites to support his contention that his ex-wife's alleged acts
render the separation agreement "unconscionable" under contract law do not
discuss unconscionability and, therefore, do not apply to the case at bar.
Wife's alleged attempt to have Husband killed does not establish a clear and
unequivocal attempt to relinquish her contractual right to maintenance so
long as Husband is living. Public policy does not dictate that the
Richardsons' maintenance agreement be modified. Wife would not profit if
Husband were murdered because then she no longer would receive maintenance,
and the state's criminal and tort laws already discourage murder.
Opinion Author: William Ray Price, Jr., Judge
Opinion Vote: AFFIRMED. All concur.
This slip opinion is subject to modification until
the Court has ruled on the parties' motions for rehearing, if any, and will
become final only after the Court issues its mandate. To see when the Court
issues its mandate, please check the docket entries for the case on
Joseph A. Richardson (Joseph) appeals the
Judgment of the St. Louis Circuit Court dismissing Count II of his Motion to
Modify Judgment and Decree of Dissolution. This Court affirms.
Joseph and Ida Richardson (Ida) divorced in
December 1997. They executed a separation agreement (Agreement) which
contained the terms of the divorce, and which they agreed would be
incorporated into the decree of dissolution. The Agreement provided that
Joseph would pay maintenance to Ida in the amount of $2,425.00 per month.
The obligation was to terminate upon Ida's remarriage or the death of either
party. The Agreement stated that "[t]he terms of this Agreement shall not be
subject to modification or change, regardless of the relative circumstances
of the parties . . . " The trial court found that the Agreement was not
unconscionable, and incorporated it into the Judgment and Decree of
Dissolution. The court's decree also specifically stated that maintenance
Joseph filed a motion to modify in 2004. In Count II of this motion, Joseph
sought to terminate his maintenance obligation, alleging, inter alia,
that Ida "sought out a person(s) for the purpose of burglarizing
[Joseph's] home," "sought out a person(s) for the purposes of murdering
[Joseph]," and "attempted to hire a person or otherwise engage services to
murder [Joseph]." Joseph further alleged that Ida thus "breached the
separation agreement, violated public policy, committed criminal acts and
waived any claim to maintenance payable by [Joseph] . . . "
The trial court dismissed Count II of Joseph's Motion with prejudice for
failure to state a claim upon which relief can be granted. The trial court's
order dismissing Count II was certified as a final order and judgment in
accordance with Rule 74.01(b). Joseph appealed the dismissal. The matter was
transferred to this Court post-opinion by the Eastern District Court of
B. POINT ON APPEAL
In his only point on appeal, Joseph asserts that "[t]he trial court erred in
granting [Ida's] 'Motion to Dismiss for Failure to State a Claim upon which
Relief could be Granted', because the trial court misinterpreted Section
452.325 RSMo,(FN1) in that, consistent with tenants (sic) of Missouri
contract law, Missouri public policy and the doctrine of waiver, the trial
court has discretion under the statute to terminate or modify an otherwise 'non-modifiable'
separation agreement post-dissolution, upon a finding that terms of the
agreement are unconscionable due to immoral criminal acts on the part of the
C. STANDARD OF REVIEW
"A motion to dismiss for failure to state a cause of action is solely a test
of the adequacy of the plaintiff's petition." Bosch v. St. Louis
Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001). "It assumes that
all of plaintiff's averments are true, and liberally grants to plaintiff all
reasonable inferences therefrom." Id. "No attempt is made to weigh
any facts alleged as to whether they are credible or persuasive." Id.
"Instead, the petition is reviewed in an almost academic manner, to
determine if the facts alleged meet the elements of a recognized cause of
action, or of a cause that might be adopted in that case." Id. In
other words, no court has determined that Joseph's allegations are true. At
this point, we simply ask whether – assuming the allegations are true –
Joseph would have a right to have his maintenance obligation modified.
"Dissolution of marriage is a statutory action, unknown to the common law."
Cates v. Cates, 819 S.W.2d 731, 734 (Mo. banc 1991). This Court is
generally bound by the statutory pronouncements of the General Assembly
regarding dissolution law. Id.
Section 452.335 RSMo allows a court to order one spouse to pay maintenance
to the other and provides the guidelines which a court must follow in
determining whether to award maintenance and in what amount. Section 452.325
provides that "the parties may enter into a written separation agreement
containing provisions for the maintenance of either of them[.]"(FN2) That
section also provides that "[i]n a proceeding for dissolution of marriage or
for legal separation, the terms of the separation agreement, except terms
providing for the custody, support, and visitation of children, are binding
upon the court unless it finds, after considering the economic circumstances
and any other relevant evidence produced by the parties, on their own motion
or on request of the court, that the separation agreement is
unconscionable."(FN3) "If the court finds that the separation agreement is
not unconscionable as to support, maintenance or property . . . , [u]nless
the separation agreement provides to the contrary, its terms shall be set
forth in the decree of dissolution[.]"(FN4) Subsection 6 states that "[t]he
decree may expressly preclude or limit modification of terms set forth in
the decree if the separation agreement so provides.
This case is controlled by section 452.325. The statute authorizes parties
to resolve the various property issues which arise during the dissolution of
their marriage by entering into a separation agreement. The statute further
provides that "[t]he decree may expressly preclude or limit modification of
terms set forth in the decree if the separation agreement so provides."(FN5)
Joseph and Ida's separation agreement, incorporated into the dissolution
decree, provided that "[t]he terms of this Agreement shall not be subject to
modification or change, regardless of the relative circumstances of the
parties . . . " Neither the Agreement, nor the decree, nor the statute
authorizes a court to modify the terms of the agreement or the decree on
account of subsequent circumstances. See, e.g., Thomas v. Thomas,
171 S.W.3d 130 (Mo. App. 2005); Mason v. Mason, 873 S.W.2d 631 (Mo.
App. 1994) ("A non-modifiable agreement which the court found
conscionable at the time of its execution does not suddenly become
unenforceable due to changed circumstances.").
A non-modification provision can cut both ways. No one can know which party
will need more or deserve less as time passes. As with all contract terms, a
non-modification provision is an agreed allocation of future risk, bargained
for and for which consideration is exchanged.
The Missouri legislature has seen fit to allow such a clause to be elevated
from contractual to judicial status by incorporation into the dissolution
decree. We are bound to respect the statute and to enforce these documents
as agreed to and ordered.
Joseph nonetheless argues against application of section 452.325(6) on four
grounds: (1) unconscionability; (2) Missouri contract law; (3) the doctrine
of waiver and (4) public policy. None of these grounds justify a departure
from the statute.
Joseph contends that a trial court may modify or refuse to enforce a
non-modifiable maintenance agreement incorporated into a dissolution
decree upon a finding that subsequent events have rendered it
unconscionable. However, there is no authority in the dissolution statutes
for the court to revisit the issue of conscionability at any time after the
decree is entered. Section 452.325(4) makes clear that the court may only
incorporate the terms of a separation agreement into the divorce decree
if it determines that the terms are not unconscionable. The
determination is made before entry of the decree, not after.
Joseph also asserts that under Missouri contract law, Ida's alleged acts
constitute a change in circumstances that renders the separation agreement
"unconscionable." In support, Joseph cites Werner v. Ashcraft
Bloomquist, 10 S.W.3d 575 (Mo. App. 2000) and Kassebaum v. Kassebaum,
42 S.W.3d 685 (Mo. App. 2001). These cases do not mention unconscionability,
but instead discuss the doctrines of impossibility and commercial
frustration. They do not apply to the case at bar.
Unconscionability relative to contract law parallels unconscionability
relative to separation agreements. Unconscionability is addressed at the
time of inception or creation of the contract, not thereafter. See
Section 400.2-302 RSMo ("If the court as a matter of law finds the contract
or any clause of the contract to have been unconscionable at the time it
was made the court may refuse to enforce the contract") (emphasis
added); State ex rel. Vincent v. Schneider, 194 S.W.3d 853, 861 (Mo.
banc 2006)("[A] contract, or provision of a contract, is unconscionable if
its terms are unconscionable at the time it was made.") (emphasis in
Joseph argues that Ida has waived her right to maintenance by attempting to
have him killed because she knew that killing him would cut off her
maintenance obligation. Waiver is the "intentional relinquishment of a known
right." Shahan v. Shahan, 988 S.W.2d 529, 534 (Mo. banc 1999).
"Waiver may be express or it may be implied by conduct that clearly and
unequivocally shows a purpose by the [entitled party] to relinquish a
contractual right." Id. Killing Joseph might have resulted in the
termination of Ida's ability to collect maintenance, but her alleged acts do
not establish a clear and unequivocal attempt to relinquish her contractual
right to maintenance so long as Joseph is living.
Joseph next argues that public policy demands that courts be allowed to
modify or terminate non-modifiable maintenance where immoral acts
"render the agreement unconscionable." In support of this contention, Joseph
relies upon a number of cases following the general rule that "no one shall
be permitted to profit by his own fraud, or to take advantage of his own
wrong, or to found any claim upon his own iniquity, or to acquire property
by his own murder." Perry v. Strawbridge, 108 S.W. 641, 643 (Mo.
1908) (internal citation omitted).
Missouri courts have followed this policy in a number of cases: Matter of
McCarty, 762 S.W.2d 458, 461 (Mo. App. 1988) (widow who intentionally
killed husband could not benefit from husband's death and receive exempt
property, widow's allowance, property held as tenancy by the entirety or
tenancy in common, or life insurance proceeds); In re Estate of Danforth,
705 S.W.2d 609, 611-12 (Mo. App. 1986) (21-year-old wife who committed fraud
in procuring marriage to 75-year-old husband and conspired to murder him to
inherit from his estate could not elect to take against his will as a
surviving spouse); Baker v. Martin, 709 S.W.2d 533, 535 (Mo. App.
1986) (husband who murdered wife could not take as devisee under her will);
Wells v. Harris, 414 S.W.2d 343, 346 (Mo. App. 1967) (husband who
murdered wife could not recover proceeds from wife's life insurance policy);
In re Laspy's Estate, 409 S.W.2d 725, 730 (Mo. App. 1966) (widow who
was convicted of manslaughter for her husband's death could not receive
statutory widow's allowance from his estate); Barnett v. Couey, 224
Mo. App. 913, 27 S.W.2d 757, 761 (Mo. App. 1930) (when tenant by the
entirety murdered co-tenant, estate was converted to a tenancy in common and
the felonious tenant could not take the deceased co-tenant's share).
None of these cases are analogous to the present case. In each of the above,
the death of the victim was a precondition to the killer receiving the
benefit. Here, Ida was already entitled to maintenance. Because Joseph's
death would result in Ida no longer receiving maintenance, Ida would not
profit in this regard if Joseph were murdered. This is a different question
than if Ida would be entitled to claim death benefits from an insurance
policy or otherwise.
Finally, Joseph asks this Court to extend the holdings in the above cited
cases in order to discourage murder. This state's criminal and tort laws
already do that.
The judgment of the trial court dismissing Count II of Joseph's Motion to
Modify is affirmed.
FN1. All statutory references are to RSMo 2000,
unless otherwise stated.
FN2. Section 452.325(1).
This slip opinion is subject to revision and may
not reflect the final opinion adopted by the Court.
From the website of the Missouri
Supreme Court http://www.courts.mo.gov/