Cheek v. Cheek
Appeal to the Missouri Court of Appeals – Eastern District from The Circuit Court of Jefferson County
NO: ED110501
Date Filed: June 6, 2023
Outcome: Reversed in part and remanded in part for findings consistent with the opinion.
The parties, L. Cheek (hereinafter “Wife”) and K. Cheek (hereinafter “Husband”) married on June 25, 1994 and separated on March of 2017. Wife filed her Petition for Dissolution in August of 2017 and Husband filed his petition in October of 2017. A trial was held in October of 2021.
During the pendency of dissolution proceedings, Husband and Wife entered into an agreement to sell the marital home and a parcel of vacant land in Branson, Missouri. Wife, who is a real estate agent, handled both sales. The parties agreed that Wife would not receive a commission on the listing with respect for the sales of their respective properties. The circuit court entered two separate consent judgments concerning this agreement.
However, the circuit court, in entering judgment, found that Wife did not receive a commission for her work in selling the two properties, and that that she had not waived her right to receive a commission awarded by the court. As a result, the Court awarded Wife a total of $36,984.00 for the sale of both properties and ordered Husband to pay Wife ½ of the commission price which totaled $18,493.00.
Following the trial ruling, Husband file a four-point appeal. The Appellate Court took up one point on appeal. The Appellate Court considered Husband’s argument that the circuit court committed reversible error, misapplied the law, and abused its discretion in awarding Wife a real estate commission, contrary to the parties’ agreement. He argues the circuit court changed the terms of the contractual consent agreement between the parties without the parties’ consent.
The Appellate Court emphasized that, “Parties to a dissolution proceeding may contract regarding their property.” Tracy v. Tracy, 205 S.W.2d 947, 948 (Mo. App. 1947). The Appellate opinion went on to note that:
“The consent agreement here is clear and unambiguous regarding Wife’s commission. The parties agreed Wife would receive no commission on the listing side for the sale of the Branson property. The parties have not directed us to and we do not find in the record where that agreement was changed by consent of the parties. Accordingly, the circuit court erred in awarding Wife a commission for the sale of the Branson property.”
The circuit court erred in awarding Wife a real estate commission contrary to the parties’ consent agreement. We therefore reverse the circuit court’s judgment with regard to that award. We remand the cause to the circuit court for further proceedings consistent with this opinion.
