Wright v. Wright

• Decision Date: 07 September 1999
• Citation: 1 S.W.3d 52
• Parties: (Mo.App. W.D. 1999) Michelle L. Wright, Appellant, v. Stephen James Wright, Respondent. WD56935 0
• Court: Missouri Court of Appeals

1 S.W.3d 52 (Mo.App. W.D. 1999)

Michelle L. Wright, Appellant, v. Stephen James Wright, Respondent.

WD56935

Missouri Court of Appeals Western District

09/07/99

Appeal From: Circuit Court of Jackson County, Hon. W. Stephen Nixon

Counsel for Appellant: Gabriel A. Domjan

Counsel for Respondent: Les D. Wight, II

Opinion Summary: Michelle L. Wright appeals the circuit court judgment dissolving her marriage to Stephen James Wright, specifically its division of the parties' marital property.

Special Division holds: (1) The trial court erred in dividing the parties' marital property because it erroneously applied section 452.330 in that it failed to value the husband's savings and pension plans as of the date of trial, resulting in an unjust and inequitable distribution of marital property. There were monthly reports in evidence as to the value of the husband's savings and pension plans but no evidence as to the value of the plans as of the date of trial. In the judgment, the savings and pension plans were valued as of the latest dates offered in the reports. Because the plans were found to have the same value at trial as they did as of the latest dates in the reports, there would have had to have been evidence from which the trial court could have inferred that either: (1) there was no activity in the plans between the value dates in question and trial; or (2) there was activity, but such activity resulted from one of the spouses secreting or squandering marital assets for which the court held him or her liable to the other spouse in its division of the plans. The record indicates that it is devoid of any such evidence. Thus, in finding that the values of the plans were the same at the time of trial as they were at the times they were valued in the reports admitted at trial, the trial court misapplied the law as found in section 452.330, requiring this court to reverse and remand for the purpose of allowing the trial court to determine the values of the plans at the time of trial, including receiving additional evidence, if necessary, and to render a just and equitable division of the parties' marital property accordingly.

(2) Section 452.330 requires trial courts to divide marital debt but does not provide any guidance as to what constitutes marital debt. It does provide that marital property is generally all property acquired by either party subsequent to the marriage. In light of this definition of marital property, it follows that marital debt is ordinarily debt incurred subsequent to the marriage. Assuming the trial court undertook to divide marital debt, it would be required to do so in a fair and reasonable fashion, considering all relevant factors, including those found in section 452.330.1. In this case, it is unclear whether the trial court was treating three debts as marital or non-marital debts. And, depending on whose testimony was believed by the trial court, the debts could have been found to be either, which would affect the determination of whether the court's property division was fair and equitable. Hence, this court is required to reverse and remand for the trial court to designate the parties' debts as marital or non-marital. In addition, although not raised in the wife's brief, the trial court's judgment should be corrected to reflect that debt on the house was the husband's non-marital debt, since the court found the house was his non-marital property.

(3) As to the proceeds from the wife's sale of the parties' 1991 Honda Civic, the record shows that the wife sold the vehicle following her separation from the husband but prior to the dissolution hearing. A trial court cannot include the value of a marital asset that no longer exists in its division of marital property where one spouse has used that asset for his or her living expenses following separation and prior to the dissolution hearing. However, where a party has intentionally secreted or squandered a marital asset in anticipation of the marriage being dissolved, the court may hold that party liable for the amount of the asset by awarding it to him or her in its division of the marital property. Here, the trial court disbelieved the wife's testimony that she used the sale proceeds in question for her living expenses but used it for other purposes, which it was free to do. As such, this court cannot convict the trial court of error in awarding the wife the car sale proceeds as marital property.

Smart and Ellis, JJ., concur.

Edwin H. Smith, Presiding Judge

Michelle L. Wright appeals the judgment of the Jackson County Circuit Court dissolving her marriage to the respondent, Stephen James Wright, as to its division of the parties' marital property. In entering its judgment, the court adopted the findings, recommendations, and proposed judgment of the family law commissioner, Sherrill Rosen, pursuant to section 487.030, ¹ RSMo Supp. 1997.

The appellant raises two points on appeal. In Point I, she claims that the trial court erred in dividing the parties' marital property because, in doing so, it erroneously applied section 452.330 in that it failed to value the respondent's stock purchase and savings plan (the savings plan) and pension investment plan (the pension plan) as of the date of trial, resulting in an unjust and inequitable distribution of marital property. In Point II, she claims that the court erred in dividing the parties' marital property because the division was unjust and inequitable in that: (1) it allocated all of the marital debt to her; and (2) it awarded her, as a share of the marital property, the $4,000 proceeds from the sale of the parties' 1991 Honda Civic.

We reverse and remand.

Facts

The parties were married on June 4, 1992, and separated on November 10, 1995. On November 14, 1995, the appellant filed her petition for dissolution of marriage in the Circuit Court of Jackson County seeking, inter alia, to dissolve the marriage and divide the marital property. On January 22, 1996, the respondent filed his answer and cross-petition.

A hearing on the appellant's petition was held on November 5 and December 6, 1996, before Commissioner Rosen. At the hearing, the appellant testified that she began working for AT&T on August 6, 1990, and continued to do so and that through this employment had accumulated savings in a 401(k) plan. With respect to her 401(k) plan, evidence was introduced showing an account balance of $ 3,846.63 as of June 30, 1996. There was no evidence of the plan's value as of the date of trial.

The respondent testified that he began working for the Sherwin-Williams Company in 1984 and that through this employment had accumulated assets in a stock purchase and savings plan and a pension investment plan. The parties stipulated that the respondent's non-marital portion of the savings plan, as of June 1992 when they were married, was 77.289 shares. With respect to the savings plan, three monthly reports, containing information concerning the value of the stocks in the plan as of three different dates, were introduced into evidence by stipulation of the parties. The first report, covering the period of June 1 through 30, 1992, showed that the respondent, as of June 30, 1992, had 77.289 shares of Sherwin-Williams stock valued at $3,616.42. The second report, covering January 1 through 31, 1993, showed that, as of January 31, 1993, he had 161.131 shares valued at $5,253.30. The last report, covering September 1 through 30, 1995, showed that he had, as of September 30, 1995, 348.529 shares valued at $15,340.51. Neither party offered any evidence as to the number of shares in the savings plan and their value as of the date of trial.

As to the respondent's non-marital portion of his pension plan, the parties stipulated to a value of $4,173.15, as of June 1992. As in the case of the savings plan, three monthly reports were also introduced as to the pension plan. The first report, covering June 1 through 30, 1992, reflected a current market value, as of June 30, 1992, of $4,173.15. The second report, covering February 1 through 28, 1993, showed that the plan's value was $ 4,262.50. The third report, covering October 1 through 31, 1995, showed a value, as of October 31, 1995, of $8,273.44. As in the case of the savings plan, no evidence was introduced as to the value of the pension plan as of the date of trial.

The appellant testified that as of the date of the trial, the parties had several outstanding debts. The first was a loan from Providean Bancorp in the amount of $8,400, which was taken out by the appellant in August 1995. The appellant testified that $900 of the loan was spent on paying off the balance due on the parties' First Card Visa credit card; $5,000 was deposited into the parties' joint checking account; and the rest, $2,500, was used to pay off a prior balance on the parties' Discover Card credit card. The appellant testified that while the respondent did not apply for the loan, he was aware that she had done so and approved. However, the respondent testified that he had no knowledge of the loan until after the appellant filed her petition for dissolution of marriage.

In addition to the debt to Providean Bancorp, the appellant testified that the parties owed $2,660 on their Discover Card credit card, which debt had been incurred prior to the parties' separation in order to pay off a loan from Boatmen's Bank. She further testified that she received a $7,000 loan from her father immediately following her separation from the respondent and that she spent the money on house and car payments, groceries, and fixing a broken water pipe. She asked the trial court to set off the loan from her father to her.

The appellant testified that in May 1996, she sold the parties' 1991 Honda Civic for $5,000. Of that amount, she testified that she spent $1,000 to pay off the loan on the vehicle and, with the remaining $4,000, paid off debts that she had acquired since the parties' separation...