how to proceed on a house we own

[godownfighting]

What is the name of your state (only U.S. law)? Missouri

My wife and I are divorcing. We own a house in Pennsylvania. It is paid for. We originally agreed that the money from the sale of the house will go to my son's college expenses. My wife wants me to sign the house over to her since we paid for it partially with her inheritance. She has agreed to still use it to pay for our son's education.

Should I trust her and sign the house over to her? Or is there some other way I can handle this to insure she won't "back out on the deal"? We are trying to file a joint petition for divorce without the help of an attorney.

 

[Ohiogal]

I would put it in the court order that mom is responsible for paying for college for the child. I wouldn't sign anything over to her until there is a court order that requires her to pay for college.

 

[godownfighting]

Thank you very much.

 

[latigo]

I would put it in the court order that mom is responsible for paying for college for the child.

With all due respect, it would be utter foolishness for a parent to commit to such an open-end, indeterminable financial obligation. And an attorney that put him or her into it would be committing professional misfeasance!

Furthermore, without imposing a specific, quantifiable obligation on the part of the parent such an agreement/order could very likely be declared void and enforceable as vague and uncertain!

For example see: Ericson vs. Ericson Court of Appeals of Virginia - Memorandum Opinion Chief Justice Felton dated July 3, 2007 Record No. 2411-06-2A

 

[mistoffolees]

With all due respect, it would be utter foolishness for a parent to commit to such an open-end, indeterminable financial obligation. And an attorney that put him or her into it would be committing professional misfeasance!

Furthermore, without imposing a specific, quantifiable obligation on the part of the parent such an agreement/order could very likely be declared void and enforceable as vague and uncertain!

For example see: Ericson vs. Ericson Court of Appeals of Virginia - Memorandum Opinion Chief Justice Felton dated July 3, 2007 Record No. 2411-06-2A

Nonsense. Agreeing to pay for college happens all the time. It's not open ended nor indeterminable. Nor would an attorney suggesting it be guilty of malfeasance.

Granted, I would probably insist on a limit (perhaps 4 or 5 years), but that doesn't change the fact that it's not unreasonable. She's getting a home scott-free. Depending on how much was paid for from the inheritance and how much the home has appreciated and how much the home is worth, that value could be huge.

 

[latigo]

Nonsense. Agreeing to pay for college happens all the time. It's not open ended nor indeterminable. Nor would an attorney suggesting it be guilty of malfeasance.

Then perhaps in addition to your disagreeing with the Virginia Court of Appeals in the Ericson case on the issue of vague and uncertainty you would also find fault with the Missouri Appellate Court’s similar holding in Echele v. Echele, 782 S.W.2d 430 (Mo. App. E.D. 1989)

Which was cited as controlling in Henbest v. Henbest Missouri Court of Appeals Southern District Case Number: 26229 - Handdown Date: 06/07/2005

The following is verbatim from the Henbest opinion. I suggest you read it and be enlightened.


“Accordingly, the court (in Echele) held that the order that the father pay one-half of the cost of vocational/technical school, one-half of the cost of post-secondary education at a state supported college or university, or one-third of tuition, books and dormitory fees of a private college or university was too uncertain and vague to be enforceable in that it did not set forth any limiting criteria as to costs at a specific college or university, leaving it open-ended.” (Emphasis added)

Sax

 

[mistoffolees]

Then perhaps in addition to your disagreeing with the Virginia Court of Appeals in the Ericson case on the issue of vague and uncertainty you would also find fault with the Missouri Appellate Court’s similar holding in Echele v. Echele, 782 S.W.2d 430 (Mo. App. E.D. 1989)

Which was cited as controlling in Henbest v. Henbest Missouri Court of Appeals Southern District Case Number: 26229 - Handdown Date: 06/07/2005

The following is verbatim from the Henbest opinion. I suggest you read it and be enlightened.


“Accordingly, the court (in Echele) held that the order that the father pay one-half of the cost of vocational/technical school, one-half of the cost of post-secondary education at a state supported college or university, or one-third of tuition, books and dormitory fees of a private college or university was too uncertain and vague to be enforceable in that it did not set forth any limiting criteria as to costs at a specific college or university, leaving it open-ended.” (Emphasis added)

Sax

I think that you might find that there's a difference between a unilateral court order and an agreement freely made between two parties. Educate YOURself.

 

[Ohiogal]

With all due respect, it would be utter foolishness for a parent to commit to such an open-end, indeterminable financial obligation. And an attorney that put him or her into it would be committing professional misfeasance!

Furthermore, without imposing a specific, quantifiable obligation on the part of the parent such an agreement/order could very likely be declared void and enforceable as vague and uncertain!

For example see: Ericson vs. Ericson Court of Appeals of Virginia - Memorandum Opinion Chief Justice Felton dated July 3, 2007 Record No. 2411-06-2A

A virginia case is NOT binding in MO.

 

[latigo]

A virginia case is NOT binding in MO.

In response to that rather lame venue argument, how about a series of Missouri Appellate Court cases as “binding” in the State of Missouri!

Starting with Brown v. Color Coating, Inc., Missouri Court of Appeals Southern District (1993) 867 SW2nd 242.

Quoting from the body of the decision:

“One of the points raised by the Insurer/defendant on this appeal is that the (circuit court) judgment was void because it was not sufficiently definite and certain to permit enforcement without resort to external proof or a further hearing. * * * we find the point determinative of this appeal * * *.”

“A judgment which is indefinite is void and unenforceable.”“An essential requirement of a judgment is that it be sufficiently certain in its terms to be susceptible of enforcement * * * without external proof or another hearing.”

“A judgment must fix the rights and responsibilities of the parties, with the obligor’s duties readily understood so as to be capable of performance and with the clerk able to issue, and the sheriff to levy execution.”Citing: Marriage of Dusting, 654 SW2nd 938; Ravenscroft v. Ravenscroft, 585 SW2nd 270; Payne v. Payne 695 SW2d 494; Luna v. Grisham, 620 SW2d at 428.
________________________

Also consider Burke v. Hutton, Mo. App E. Dist, 242 SW3rd 431 and Reid V. Steelman, Mo. App. W. Dist 210 SW3rd 273, and In Marriage of Boston, Mo. App. S Dist, 104 SW3rd 825.

“A potentially void judgment may be impeached in any proceeding in which it is sought to be enforced or in which its validity is questioned.”

________

Is it necessary to call attention to the fact that the same definiteness and certainty principle applies equally in contract law?

17 American Jurisprudence - Contracts - Section 181

“To be enforced a contract must be definite and certain as to its terms and requirements.”

“The parties obligation must be so defined so that the adequacy of performance can be ascertained.”

Perhaps you would care to explain your position as to why a bare commitment by a parent in a postnuptial agreement to assume the costs of a child’s post high school education – such as you have recommended with “pay for college” -

Without reservation or specification as to the institution, the nature, the period and cost of the education – tuition, books, housing, housing, food, clothing, medical, travel, etc., -

Is not so indefinite and uncertain as to be unenforceable under the authorities as cited.

Would you consider you suggestion of “pay for college” as readily understood and as fixing and ascertaining the obligor’s performance?

Sax

 

[Ohiogal]

In response to that rather lame venue argument, how about a series of Missouri Appellate Court cases as “binding” in the State of Missouri!

Starting with Brown v. Color Coating, Inc., Missouri Court of Appeals Southern District (1993) 867 SW2nd 242.

Quoting from the body of the decision:

“One of the points raised by the Insurer/defendant on this appeal is that the (circuit court) judgment was void because it was not sufficiently definite and certain to permit enforcement without resort to external proof or a further hearing. * * * we find the point determinative of this appeal * * *.”

“A judgment which is indefinite is void and unenforceable.”“An essential requirement of a judgment is that it be sufficiently certain in its terms to be susceptible of enforcement * * * without external proof or another hearing.”

“A judgment must fix the rights and responsibilities of the parties, with the obligor’s duties readily understood so as to be capable of performance and with the clerk able to issue, and the sheriff to levy execution.”Citing: Marriage of Dusting, 654 SW2nd 938; Ravenscroft v. Ravenscroft, 585 SW2nd 270; Payne v. Payne 695 SW2d 494; Luna v. Grisham, 620 SW2d at 428.
________________________

Also consider Burke v. Hutton, Mo. App E. Dist, 242 SW3rd 431 and Reid V. Steelman, Mo. App. W. Dist 210 SW3rd 273, and In Marriage of Boston, Mo. App. S Dist, 104 SW3rd 825.

“A potentially void judgment may be impeached in any proceeding in which it is sought to be enforced or in which its validity is questioned.”

________

Is it necessary to call attention to the fact that the same definiteness and certainty principle applies equally in contract law?

17 American Jurisprudence - Contracts - Section 181

“To be enforced a contract must be definite and certain as to its terms and requirements.”

“The parties obligation must be so defined so that the adequacy of performance can be ascertained.”

Perhaps you would care to explain your position as to why a bare commitment by a parent in a postnuptial agreement to assume the costs of a child’s post high school education – such as you have recommended with “pay for college” -

Without reservation or specification as to the institution, the nature, the period and cost of the education – tuition, books, housing, housing, food, clothing, medical, travel, etc., -

Is not so indefinite and uncertain as to be unenforceable under the authorities as cited.

Would you consider you suggestion of “pay for college” as readily understood and as fixing and ascertaining the obligor’s performance?

Sax

Oh good grief. And if mom agrees then it doesn't matter. And of course it would not be written as Pay for college. It would be written that x amount from the equity in the home is utilized for college expenses for the minor children and that mom would solely responsible for said bill or whatever. You really are thick aren't you?