William B. Troupe, Appellant, v. Deborah Y. Troupe, Respondent.

WILLIAM B. TROUPE, Appellant, v. DEBORAH Y. TROUPE, Respondent. ) ) ) ) ) ) ) ) ) ED113119

Appeal from the Circuit Court of St. Louis County The Honorable Megan H. Julian, Judge Introduction This matter stems from appellant William Troupe's (Husband) motion to enforce the 2020 judgment dissolving the marriage between him and respondent Deborah Troupe (Wife). The judgment incorporated the parties' marital settlement agreement (MSA), the terms of which are central to Husband's motion and to our disposition of this appeal. The MSA left the parties' Black Jack, Missouri real estate titled in both names as joint tenants with the right of survivorship and awarded Wife the right to live in the marital home located on that property. The MSA made both parties responsible for one- half of the mortgage payments – Husband was to send Wife his one-half share each

2 month and then Wife was to add her one-half before forwarding the payment to the mortgage company. As for the parties' rental home, also located on the Black Jack property, the MSA tasked Wife with renting out that property and allowed her to keep the rental payments as a source of income. After Husband learned in 2023 that Wife had concealed from him that she had not made the mortgage payments for over six months in 2021 and had pocketed thousands of dollars of the monthly mortgage money Husband had been sending to her bank account, Husband filed his motion to enforce the dissolution decree. First, Husband requested the court's order to sell the Black Jack property because Wife's breach of the MSA by failing to pay the mortgage for at least ninety days triggered the provision of the MSA that granted Husband the option to sell the property. Second, Husband requested that Wife be ordered to pay him one-half of the proceeds from the parties' homeowner's insurance claim after a vehicle struck the rental home because Wife did not get his consent before spending the insurance proceeds on the home's repairs. Finally, Husband requested an award of the attorney's fees he incurred as a result of Wife's multiple breaches of the MSA. The trial court denied Husband's request to sell the property finding that Wife's non-payment of the mortgage, pursuant to a payment forbearance program offered by their mortgage company during the COVID-19 pandemic, was not a breach of the MSA because it did not result in a "delinquency." Instead, the court awarded $13,256.25 in damages to Husband representing the amounts he had paid Wife for his one-half of the

3 mortgage but which she had largely pocketed instead of making the mortgage payments as mandated by the MSA. The court further held that Wife properly used the insurance proceeds to repair the rental home and that Husband was not entitled to any reimbursement of those funds but it ordered that any future funds paid pursuant to this insurance claim be awarded equitably between the parties.. Finally, the court denied Husband's request under the MSA for attorney's fees for Wife's breaches and declined to award attorney's fees to either party. Husband now appeals. We grant point one and reverse because the MSA granted Husband the option to "put the [Black Jack] property up for sale" if "Wife fails to make her one-half (1/2) of the mortgage payment for ninety (90) days or longer,"

and the MSA included no exception to that language. We also grant point two and reverse because pursuant to the terms of the MSA, Wife's multiple and material breaches in connection with the mortgage payments entitle Husband to an award of attorney's fees. 1 We remand for the trial court to determine the amount of such attorney's fees. We deny Husband's third point because Wife properly used the insurance funds to repair the rental home. Background On December 4, 2020, the court entered its judgment dissolving the parties' marriage. The judgment incorporated an MSA in which the parties addressed their Black Jack, Missouri real estate – the situs of their home and a rental home. The MSA left the

1 In point four, Husband challenges the court's finding that he breached the MSA by his one-half mortgage payment arriving to Wife's account a few days late on a few occasions to the extent this finding may have affected the court's decision not to award him attorney's fees. We find this point to be moot based on our holding in point two.

4 property titled in both parties' names as joint tenants with the right of survivorship. Wife would remain in the home and would be in charge of renting the other house and entitled to keep the rent payments. This status quo lasted until Wife began struggling financially nearly a year into the COVID-19 pandemic. At the hearing on Husband's motion to enforce, Wife testified that soon after the pandemic hit in early 2020, she lost her job as a school bus driver because schools had closed. In January 2021, Wife, struggling financially, applied for and received assistance from the mortgage company in the form of payment forbearance pursuant to a COVID-19 relief plan. The forbearance period was January 2021 to August 2021. Wife did not inform Husband that she had stopped making the mortgage payments under the bank's forbearance program. Wife admitted that she kept Husband out of the loop because she knew he would want to sell the property if she told him the truth. Wife testified she used some of the Husband's mortgage money to make partial mortgage payments. For his part, Husband testified that because his name was not on the mortgage, the MSA required him to pay Wife on a monthly basis his one-half share of the mortgage payment. He relied on her to then make the payment. Husband also relied on Wife to provide him with the mortgage statements. Husband further testified that during the forbearance period, he continued to send Wife his share of the mortgage payment in twice monthly installments as required by the MSA. His payments were directly deposited from his paycheck into Wife's account. Ultimately, after learning of Wife's above conduct, Husband filed his motion to enforce on April 14, 2023 claiming that Wife's breach of the MSA by her failure to make

5 the mortgage payments on the Black Jack property for at least ninety days triggered his option to sell the property and split the proceeds equally between them. Specifically, Husband requested that the court grant him sole authority to hire a real estate agent to list the property for sale and to sell the property and to order Wife to allow real estate agents to enter the property as frequently as every day until the property was sold. Husband also sought reimbursement of his one-half mortgage payments that Wife had kept. As for the insurance claim issue, both Wife and Husband were named insureds on a Nationwide Mutual Insurance Company homeowner's policy on the Black Jack property. On November 1, 2022, a vehicle smashed into the rental home so Wife initiated an insurance claim. According to Husband, the proceeds of the claim totaled $88,357.69, some of which had been paid to Wife and Husband and used to make repairs and the rest remained in escrow. Husband and Wife had both endorsed the insurance company's checks. Husband's chief complaint is that Wife did not obtain his consent to use the money to repair the property, repairs which included fixing the siding, the foundation, the electrical service, and the AC unit. Husband offered no evidence the repairs were unnecessary, excessive, or wasteful. Instead, he claimed simply that the repairs did not increase the property's value or otherwise benefit him because he wanted to sell the property to a commercial developer and he speculated that any buyer would likely tear down the house anyway. Husband's real estate broker testified that Wife's repairs did not make financial sense "if there was going to be a sale." Wife admitted she used the insurance proceeds to repair the property without Husband's consent. But she also

6 testified that the repairs were necessary to address the damage and ensure the property remained safe, habitable, and rentable. In his motion to enforce, Husband requested that any of the insurance proceeds that had not already been expended on the property's repair be placed in escrow and that upon the sale of the property, all sale proceeds and any monies in escrow be distributed equally between the parties. On July 31, 2024, the trial court entered its judgment finding that Wife did not breach the MSA by failing to pay to the mortgage company the one-half mortgage payments Husband had sent her and by failing to pay the mortgage at all for seven months in 2021 pursuant to the bank's mortgage payment forbearance program. The court reasoned that by taking advantage of the forbearance program, Wife had not let the mortgage become delinquent for at least ninety days and therefore had not triggered the sale provision of the MSA. The court found, however, that Wife breached by pocketing Husband's mortgage payments and by failing to notify him of the forbearance. The court also found Husband in breach of the MSA for his failure to pay Wife his mortgage money promptly on the fifteenth and thirtieth of each month. The court then ordered Wife to pay Husband $13,256.25 in damages representing the mortgage monies Husband had paid Wife but she had not paid to the mortgage company. The court denied Husband's claim to one-half of the insurance proceeds because Wife used the insurance proceeds to repair the rental home as intended by the insurance claim. But the court ordered any of the proceeds that had not been used for repairs be

7 awarded equitably between the parties. As for attorney's fees, the court awarded none to either party. Standard of Review As in any court-tried case, we will affirm the trial court's judgment "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). But we review the interpretation of a settlement agreement de novo. Royalty v. Royalty, 264 S.W.3d 679, 683 (Mo. App. 2008). As for attorney's fees, "if a claim for attorney's fees is made under a provision of the contract, the trial court must comply with the terms set forth therein." Garner v. Hubbs, 17 S.W.3d 922, 930 (Mo. App. 2000). Discussion Our resolution in Husband's favor on his first point is simple. The sale-triggering MSA provision – "Wife['s] fail[ure] to make [her] payment on one-half (1/2) of the mortgage for ninety days or longer..." – includes no exception and by treating the mortgage forbearance as an exception, the trial court read language into the contract that is not there. "In interpreting a settlement agreement incorporated into a dissolution decree, the general rules of contract construction apply." Story v. Story, 452 S.W.3d 253, 254 (Mo. App. 2015). A trial court should read the words of the contract and give them their plain, ordinary, and usual meaning. Belton Chopper 58 LLC v. N. Cass Dev., LLC, 496 S.W.3d

8 529, 532 (Mo. App. 2016). "Where a contract is clear and unambiguous, the Court may not supply additional terms." McGuire v. Lindsay, 496 S.W.2d 599, 560 (Mo. App. 2016). The language of the parties' MSA is unambiguous 2 – if Wife fails to make the mortgage payment for at least ninety days, Husband has the option to put the property up for sale. 3 Further, the MSA does not contain any language that would exempt either party from making the mortgage payment due to unforeseen circumstances including even for a global pandemic. Simply put, the MSA does not concern itself with the reason for non-payment. But as the document's drafters, the parties here could have done so. For instance, many agreements include force majeure clauses, which is a "contractual provision allocating the risk if performance becomes impossible or impracticable, especially as a result of an event or effect that the parties could not have anticipated or controlled." Clean Uniform Co. St. Louis v. Magic Touch Cleaning, Inc., 300 S.W.3d 602, 610 (Mo. App. 2009) (internal citations omitted).

2 Though not raised by either party, we observe some inconsistency in the MSA's provision that controls here regarding Wife's failure to make her mortgage payment for at least ninety days. Initially, the MSA states that upon such a circumstance, "the real estate shall be sold, at fair market value, and the net proceeds shall be equally divided between Husband and Wife." (Emphasis added). But later, instead of mandating the sale, it states that "Husband has the option, in addition to making the payment, to put the property up for sale." (Emphasis added). We find this discrepancy inconsequential. 3 This provision of the MSA is tantamount to an option contract. "An option is a privilege, a right of election to exercise a privilege." Carondelet Health System, Inc. v. Royal Gardens Associates, 943 S.W.2d 669, 672 (Mo. App. 1997). "If an option contract contains the necessary provisions, specific performance may be enforced." Id. at 673 (quoting Frey v. Yust, 516 S.W.2d 321, 323 (Mo. App. 1974)).

9 Moreover, we find dubious the trial court's rationale that Wife's enrollment in the forbearance program meant she did not breach because the mortgage was never delinquent for over ninety days. The word "delinquent" or its equivalent does not appear in the contract and courts are not permitted to supply language. Textor Constr., Inc. v. Forsyth R-II Sch. Dist., 60 S.W.3d 692, 698 (Mo. App. 2001). The MSA merely posits whether or not Wife failed to make the mortgage payments for ninety days or more. Based on the foregoing, and applying the plain terms of the MSA, we reverse and remand on this point. The trial court shall issue its order and judgment granting Husband the right to sell the Black Jack property according to the terms of the MSA. Specifically, Husband shall have the sole authority to select a licensed real estate agent to list the property for sale without Wife's authorization or signature. In consultation with the agent, Husband shall make all decisions with respect to the listing including the listing price and any offers and counter-offers except with respect to the minimum sale price addressed below. As far as an acceptable sale price is concerned, the MSA provided at one point that in the event the property's sale is triggered, the property should be sold "at fair market value." The parties agreed in the MSA that the property's fair market value was $800,000. So, Husband shall have the authority to accept any offer of at least $800,000. In the event Husband obtains an offer below $800,000, Husband may only accept such offer upon receipt of Wife's written consent in the form of an affidavit.

10 Points Two and Four We address these points together as they both concern attorney's fees. In his second point, Husband claims that the trial court erred in failing to award him attorney's fees and damages since the MSA unambiguously sanctioned the award of reasonable attorney's fees in the event the non-breaching party retains an attorney to enforce the MSA against the other party who is in breach. We agree since Wife's multiple breaches, which included concealing from Husband her failure to pay the mortgage, required Husband to retain an attorney to enforce the MSA's terms. In general, each party in a domestic relations case is responsible for their own attorney's fees. Valentine v. Valentine, 400 S.W.3d 14, 31 (Mo. App. 2013). This is consistent with the "American rule" that litigants bear the expense of their own attorney's fees. LaBarca v. LaBarca, 534 S.W.3d 329, 338 (Mo. App. 2017). "The exceptional situations in which Missouri permits the award of attorney's fees as part of costs or damages include: where the right to attorney's fees is set by statute or provided for by contract ...." Id. "Attorney fee provisions in separation agreements fit under the 'contract' exception to the 'American rule.'" Id. (quoting Schottel-Lehde v. Schottel, 75 S.W.3d 359, 365 (Mo. App. 2002)). Thus, the MSA's attorney's fees provision falls squarely under the contract exception to the American rule. Id. And Wife undisputedly breached the MSA by failing to make mortgage payments for more than ninety days and by continuing to accept Husband's mortgage money while concealing all this from him. So Husband hired a lawyer to enforce the MSA's terms. See Garner, 17 S.W.3d at 930. We grant point two

11 and remand to the trial court to determine the reasonable attorney's fees Husband incurred in this context. As for point four, Husband argues there was not substantial evidence that he breached the MSA by making several late mortgage payments to Wife. We find this point to be moot. Bank of Washington v. LCRA Holdings Corporation, 591 S.W.3d 11, 12 (Mo. App. 2019) ("A case is 'moot' if a judgment rendered has no practical effect upon an existent controversy."). But we acknowledge the premise of Husband's argument – that the court denied attorney's fee to either side because it found both sides breached. But even in that context, we find the trial court misapplied the terms of the MSA because it does not state that a party in breach cannot recover attorney's fees. Instead, it states that the court shall order the breaching party to pay a reasonable attorney's fees when the other party "is required to employ an attorney to enforce the terms" of the MSA that have been breached. It is undisputed that Husband made several payments that were late in hitting Wife's bank account by a matter of days. 4 But under the terms of the MSA, these seemingly de minimis breaches are only relevant to the extent if Wife had requested attorney's fees under the MSA because she had to hire a lawyer to enforce the MSA with respect to the timing of Husband's payments. Yet, there is nothing in this record that any

4 During cross-examination, counsel stated, "It looks like there was [sic] several payments here that were received from you to Ms. Troupe after the 16th; is that correct?" Husband agreed that was correct.

12 of that occurred or that Wife was damaged or even inconvenienced by his brief payment delays. In fact, the only record vis-à-vis Husband's payments to Wife was her breach when she failed to forward those payments to the mortgage company and instead pocketed them. 5

Point four is moot. Id. Point Three This point concerns Husband's claim regarding the insurance money for the rental home's damage. Husband's argument is based on his status as the property's joint owner. But Husband's only authority supporting his claim is an inapplicable statute, section 442.030 (RSMo 2016), and no caselaw. Moreover, his claim here ignores the broad authority that trial courts have with respect to the disposition of marital property in a divorce. David v. David, 954 S.W.2d 611, 614 (Mo. App. 1997) (citing Woolridge v. Woolridge, 915 S.W.2d 372, 376 (Mo. App. 1996) ("The trial court has 'great flexibility and far reaching power' in dividing marital property...")). And here the court exercised that authority when it entered its judgment based on the parties' MSA mandating the second home's continued use as a rental property with Wife deriving income from the rent payments. As for Husband's status as joint owner, we agree that he has an interest in the insurance proceeds and had Wife spent them on something other than the parties' rental home, Husband might have an argument. But she spent the money on property they both

5 In her proposed findings and conclusions, Wife asked for attorney's fees "incurred in defending" against Husband's motion. The MSA does not provide for such an award.

13 own. And there is sufficient evidence supporting the trial court's decision that the repairs were necessary to fix the damage caused by the car striking the structure. While the MSA may be silent on the specific question before us, that is, how to handle proceeds from an insurance claim for damage to the property. Its silence here is merely a placeholder for common sense. The trial court reached a common sense conclusion that Wife only made the repairs that were the subject of the insurance claim to make the rental home habitable once again and used the money as intended. Thus, we deny point three. Conclusion Based on the foregoing, we reverse on Husband's first and second points and remand to the trial court to determine the attorney's fees award and we affirm point three. _________________________ James M. Dowd, Judge Rebeca Navarro-McKelvey, Presiding Judge and Gary M. Gaertner, Jr., Judge concur.