JACQUELINE KLINELINE,                        )
                                             )
                 Petitioner-Appellant,       )
                                             )
v.                                           )      No. SD33705
                                             )      Filed: 10-13-15
ROBERT PATRICK KLINELINE,                    )
                                             )
                 Respondent-Respondent.      )

               APPEAL FROM THE CIRCUIT COURT OF OZARK COUNTY

                  Honorable Lynette B. Veenstra, Associate Circuit Judge

AFFIRMED

       Jacqueline Klineline (Wife) appeals the dismissal of her petition in equity to

divide omitted marital property. The petition alleged that Wife’s marital interest in a

pension plan was omitted from a 2003 judgment dissolving her marriage to Robert

Klineline (Husband). The trial court determined that Wife’s action was barred by the

applicable statute of limitations. We agree and affirm.

       Wife’s verified petition to determine the division of omitted property was filed on

August 28, 2013. In relevant part, the August 2013 petition contained the following

allegations:
       1. The trial court entered a dissolution judgment (hereinafter referred to as
          the original judgment) on February 26, 2002.

       2. The third paragraph on page five of the original judgment included the
          following: [Wife] shall receive 31.25% of [Husband’s] GTE Pension
          Plan in accordance with the Qualified Domestic Relations Order
          [QDRO] attached hereto as Exhibit “F” and incorporated herein by this
          reference.

       3. After Wife filed a timely motion to amend, the original judgment was
          set aside.

       4. On February 18, 2003, the court entered a new judgment (hereinafter
          referred to as the modified judgment).

       5. In the modified judgment, the court “struck in its entirety” the third
          paragraph on page five of the original judgment, which included the
          division of the GTE pension plan and the incorporation by reference of
          the attached Exhibit F QDRO.

       6. Paragraph 3 of Wife’s verified petition alleged that “there was marital
          property omitted from the Modified Judgment, specifically [Wife’s]
          31.25% interest in [Husband’s] GTE Pension Plan in accordance with
          the Qualified Domestic Relations Order which was in the Original
          Judgment.”

       Husband filed a motion to dismiss which asserted that Wife’s action was barred

by the statute of limitation in either § 516.120(4) and § 516.110.1 During the hearing on

that motion, Husband’s attorney argued that the action was time-barred because Wife had

known about the GTE pension asset and its omission from the modified judgment for

more than ten years without filing suit. Wife’s attorney acknowledged that the GTE

pension plan was omitted property because that asset had been entirely removed from the



       1
          All statutory references are to RSMo (2000). Section 516.120 provides a five-
year limitation in “[a]n action for taking, detaining or injuring any goods or chattels,
including actions for the recovery of specific personal property, or for any other injury to
the person or rights of another, not arising on contract and not herein otherwise
enumerated[.]” § 516.120(4). Section 516.110 generally provides a ten-year limitation
for actions “upon any writing ... for the payment of money or ... for relief, not herein
otherwise provided for.” § 516.110(1) and (3).


                                             2
modified judgment.2 Wife’s attorney argued that the cause of action to divide omitted

property did not accrue, however, until: (1) Wife contacted GTE; and (2) her claim was

denied on the ground that the GTE pension had not been divided in the modified

judgment.    According to Wife’s attorney, it was the GTE plan administrator’s

interpretation of the modified judgment as omitting the pension plan which caused Wife’s

cause of action to accrue.

       The trial court granted the motion to dismiss. The court concluded that: (1) both

parties were aware of Wife’s interest in the pension plan when the original judgment was

entered; (2) the right to bring Wife’s action accrued in February 2003 when the trial court

entered the modified judgment omitting the pension plan; and (3) Wife’s August 2013

petition was time-barred because it was filed more than ten years after the cause of action

accrued. This appeal followed.3

       When marital property is omitted from a final dissolution judgment due to fraud,

accident or mistake, the aggrieved party has a right to bring a separate equitable action to

divide the omitted property. Doss v. Doss, 822 S.W.2d 427, 428 (Mo. banc 1992);



       2
           During the argument, Wife’s attorney said “[t]he amended judgment took out
the pension entirely, so it is omitted property.” She reiterated that point later by stating
that “we have an asset that was not included in the judgment. It’s omitted property. It
gives rise to a cause in equity.”
       3
            The statement of facts in Wife’s brief refers to documents included in the
appendix to her brief. Husband filed a motion to strike those documents because they are
not part of the record on appeal. That motion is granted, and we have not considered any
of the stricken material in this opinion. See Evans v. FirstFleet, Inc., 345 S.W.3d 297,
306 (Mo. App. 2011) (merely including a document or exhibit in an appendix to a brief
does not make that item part of the record on appeal); DeGennaro v. Alosi, 389 S.W.3d
269, 275 (Mo. App. 2013) (an appellate court will not consider documents in an appendix
to a brief that are not part of the record on appeal). We deny all other motions that were
taken with the case.



                                             3
Chrun v. Chrun, 751 S.W.2d 752, 755 (Mo. banc 1988). Wife contends the trial court

erred by dismissing Wife’s equitable action on the ground that it was barred by the statute

of limitations. Kennedy v. Microsurgery & Brain Research Inst., 18 S.W.3d 39 (Mo.

App. 2000), summarizes the applicable standard of review for this appeal:

       Our review of the dismissal of a petition as being time-barred by the
       expiration of the applicable statute of limitations requires an examination
       of the pleadings, allowing them their broadest intendment, regarding all
       facts alleged as true, and construing the allegations in favor of the
       plaintiff. When an affirmative defense is asserted, such as a statute of
       limitations, the petition may not be dismissed unless it clearly establishes
       on its face, and without exception, that the action is barred. For an
       affirmative defense to be sustained upon a bare motion to dismiss, the
       defense must be irrefutably established by the plaintiff’s pleadings.

Id. at 42 (internal citations omitted). “A determination of when the statute of limitations

is put in motion is a question of law.” Murray v. Fleischaker, 949 S.W.2d 203, 206 (Mo.

App. 1997).

       The outcome of this appeal is controlled by Doss, in which our Supreme Court

addressed the same issue: whether an equitable action to divide marital property omitted

from the final decree was barred by the statute of limitations. Doss, 822 S.W.2d at 428.

The omitted property there was a wife’s marital interest in her husband’s pension plan.

The decree omitting the property was entered in 1976, and the wife’s equitable action

was filed 13 years later. Id. at 428-29. The Court concluded that the wife’s equitable

cause of action accrued “when the decree omitting the pension plan was entered in 1976.”

Id. at 429. The Court also noted “[m]ere ignorance of the cause of action does not

prevent running of the statute of limitations.” Id. Because the wife’s equitable action

was filed 13 years after the 1976 decree became final, it was barred by the five-year

statute of limitations in § 512.120 or the ten-year statute of limitations in § 516.110. Id.




                                              4
       We reach the same conclusion here. The allegations in Wife’s petition, which we

accept as true to decide the statute of limitations issue, assert that the GTE pension plan

was divided in the original judgment and then omitted from the modified judgment.

Accordingly, Wife was aware of this marital asset and could have brought her equitable

action to divide the GTE pension at any time after the modified judgment became final.

See id. Because Wife’s August 2013 petition irrefutably demonstrates that it was filed

over ten years after Wife’s cause of action accrued, the trial court correctly dismissed the

petition as time-barred. See id.; §§ 516.110, 516.120; see also Field v. Redfield, 985

S.W.2d 912, 919-20 (Mo. App. 1999); McElroy v. McElroy, 826 S.W.2d 105, 107 (Mo.

App. 1992).

       We have considered Wife’s contrary arguments, but we find them unpersuasive in

light of our Supreme Court’s decision in Doss. First, Wife argues that the GTE pension

plan was not actually omitted from the modified judgment. This argument fails because

it is directly contrary to the allegations of her petition and the position she took during

argument on the motion to dismiss. See Porter v. Erickson Transp. Corp., 851 S.W.2d

725, 736 (Mo. App. 1993) (a party generally will not be permitted to take a position on a

matter that is directly contrary to, or inconsistent with, one previously assumed). Second,

Wife argues that the modified judgment ratified the previously entered Exhibit F QDRO

relating to the GTE pension.         This argument fails because, as Wife’s petition

acknowledges, the paragraph of the original judgment dividing the GTE pension and




                                             5
incorporating the Exhibit F QDRO was stricken in its entirety. Therefore, the GTE

pension was not divided and there was no QDRO to ratify.4

       Wife’s point is denied, and the trial court’s judgment is affirmed.



JEFFREY W. BATES, J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCUR

MARY W. SHEFFIELD, C.J. – CONCUR




       4
           For this reason, neither Ochoa v. Ochoa, 71 S.W.3d 593 (Mo. banc 2002), nor
Lane v. Non-Teacher School Employee Retirement System of Missouri, 174 S.W.3d
626 (Mo. App. 2005), support Wife’s argument. In Ochoa, the original judgment divided
the pension, and the parties intended to create a QDRO that met ERISA’s requirements.
Ochoa, 71 S.W.3d at 595. Lane applied the general accrual rule in pension cases
governed by ERISA. The usual rule in such cases is that, in an ERISA action brought by
an employee, the cause of action accrues after the employee’s claim for benefits has been
made and formally denied. Lane, 174 S.W.3d at 637. That rule has no application in this
equitable action to divide marital property omitted from a final dissolution decree.



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