Section 24.25 Undivided Property

• Library: Family Law Deskbook and 2014 Supp

D. (§24.25) Undivided Property

Once a final judgment has been rendered, the issue of the proper remedy and procedure to be followed to divide and dispose of omitted and nondivided property is problematic. In Ploch v. Ploch, 635 S.W.2d 70 (Mo. App. E.D. 1982), the Eastern District had concluded that the proper and appropriate remedy was to file in the divorce proceeding itself a post-decree motion to divide unallocated property. The Western District disagreed and held in Gehm v. Gehm, 707 S.W.2d 491 (Mo. App. W.D. 1986), that the remedy was to file a separate suit in equity that would require new service of process. The Supreme Court resolved this conflict in Chrun v. Chrun, 751 S.W.2d 752 (Mo. banc 1988), and held that the proper remedy was to file a new and separate suit in equity.

Under Chrun and Henning v. Henning, 72 S.W.3d 241 (Mo. App. W.D. 2002), the proper remedy to divide property not divided
in the dissolution decree is to file a new and separate action
in equity. Counsel should be aware that the failure to divide property in the dissolution decree might have a chilling effect
on appellate jurisdiction. In Spauldin v. Spauldin, 945 S.W.2d 665 (Mo. App. W.D. 1997), the appellate court held that, if undistributed property is discovered before the time for appeal has lapsed, the appeal must be dismissed because the trial court has not exhausted its jurisdiction. “[T]he finality of a judgment is a jurisdictional prerequisite and it is the duty of a court sua sponte to determine,” even if the undivided property is not the issue of the appeal. Id. at 668 (quoting Spence v. Spence, 922 S.W.2d 442, 442...