Marriage of Gourley, In re, 16839

• Citation: 811 S.W.2d 13
• Decision Date: 31 May 1991
• Docket Number: No. 16839,16839
• Parties: In re the MARRIAGE OF Connie L. GOURLEY and Ewing B. Gourley. Connie L. GOURLEY, Appellant, v. Ewing B. GOURLEY, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 13

811 S.W.2d 13

In re the MARRIAGE OF Connie L. GOURLEY and Ewing B. Gourley.

Connie L. GOURLEY, Appellant, v. Ewing B. GOURLEY, Respondent.

No. 16839.

Missouri Court of Appeals,

Southern District,

Division Two.

May 31, 1991.

Motion for Rehearing or to Transfer

Denied June 21, 1991.

Application to Transfer Denied July 23, 1991.

Richard E. Dorr, C. Ronald Baird, Dorr, Baird and Lightner, B.H. Clampett, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, for appellant.

Robert C. Fields, Devon F. Sherwood, Sherwood, Honecker & Bender, Springfield, for respondent.

FLANIGAN, Chief Judge.

This action for dissolution of marriage was instituted, in April 1986, by Connie L. Gourley against her husband Ewing B. Gourley. The parties, who will be referred to by their first names, were married on October 16, 1964, and separated on February 7, 1986. The parties have two children, Jennifer Gourley, who was born March 15, 1971, and Jefferson Gourley, who was born May 4, 1974. In 1988, the trial court held a hearing which lasted 12 days.

On January 12, 1990, the trial court issued its decree which: (a) dissolved the marriage as of February 1, 1988; (b) awarded the parties joint legal custody of both children, with physical custody of Jennifer to be with Ewing and physical custody of Jefferson to be with Connie; (c) awarded no child support to either party but required the party with physical custody to be responsible for the support of that child; (d) required Ewing to provide medical and hospitalization insurance for both children until emancipation; (e) divided the marital property by awarding Connie assets valued by the court at $2,239,451 and awarding Ewing assets valued by the court at $2,241,239; (f) set apart to Connie nonmarital property valued at $55,000 and set apart to Ewing nonmarital property valued at approximately $1,000; (g) required Ewing to pay "$75,000 cash" to Connie; (h) required Ewing to pay $25,000 to Connie's attorneys "as a partial attorney fee award"; (i) imposed on Ewing marital debts totaling $18,150; and (j) denied Connie's request for an award of maintenance.

Connie's 21 witnesses included a bank president, a gemologist, four real estate experts, personal property experts, and four accountants. Ewing's witnesses included an accountant, an attorney, an antique appraiser and a personal property expert.

Prior to the trial, both sides requested that the trial court make findings of fact. After the trial, Connie submitted 186 proposed findings. The court held several post-trial conferences with counsel concerning Connie's proposed findings and findings proposed by Ewing. The record of those conferences occupies 435 pages of the transcript. The court accepted many of the proposed findings, amended others and rejected the remainder. The trial court incorporated the accepted and amended findings in its judgment. Connie alone appeals.

In general, Connie contends that the trial court erred: (1) in dividing the marital property; (2) in failing to award Connie child support for Jefferson; and (3) in failing to award a larger sum for Connie's attorneys' fees. Connie requests this court to grant the following relief: (a) change the trial court's valuation of certain items of the marital property and award Connie, as her share of the marital property, assets totaling $3,218,492; (b) require Ewing to pay child support for Jefferson in the amount of $2,500 per month, retroactive to February 1, 1988; and (c) increase the amount awarded Connie for attorneys' fees from $25,000 to $100,000.

Connie's first two points, which will be considered together, challenge the trial court's division of the marital property. Connie contends that the trial court treated inconsistently substantial tax refunds and potential tax refunds, overlooked or ignored certain property of substantial value which was in Ewing's possession, and grossly undervalued certain property set off to Ewing. Connie further contends, in a more general attack upon the trial court's division of the marital property, that "an adequate compensating adjustment was not made for the substantial amount of marital property squandered, dissipated, or used unacceptably by Ewing between the time of separation and the time of trial."

The Dissolution of Marriage Act consigns the division of marital property to the sound discretion of the trial court. Colabianchi v. Colabianchi, 646 S.W.2d 61, 64 (Mo. banc 1983). Appellate courts must defer to the trial court's judgment unless the judgment is improper under the principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or an abuse of discretion is shown. Dardick v. Dardick, 670 S.W.2d 865, 868 (Mo. banc 1984). The judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, or it is against the weight of the evidence, or it erroneously declares or applies the law. "Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy, at 32.

Section 452.330, ¹ as amended by L.1988, reads in pertinent part:

"1. In a proceeding for dissolution of the marriage ... the court shall set apart to each spouse his nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children."

The following table lists the marital assets as valued and distributed by the trial court:

                                          Connie      Ewing
                Real Estate
                  Residence             $  515,000
                  East Sunshine Lot                 $   42,500
                  1505 East Trafficway                 120,000
                Vehicles
                  4 vehicles                     42,000
                  10 vehicles                                39,650
                Boats                            54,151     143,550
                Household furnishings            90,000       8,000
                Property left from HCA                       65,000
                Notes Receivable
                  Park Plaza note               440,000
                Additional receivables           23,308       1,356
                Business entities assets                     99,500
                Insurance policies                2,766       2,970
                Checking & savings accounts   1,072,226   1,736,863
                                             ----------  ----------
                           TOTAL             $2,239,451  $2,259,389
                Debts                                        18,150
                                                         ----------
                                                         $2,241,239
                

] The record on appeal, which this court has examined in light of Connie's contentions on appeal, includes a 26-volume transcript ² and a legal file containing 622 pages. Such a record defies synopsis.

Both Connie and Ewing hold master's degrees conferred by the University of Missouri. Prior to 1981, Ewing was employed in various positions by the state of Missouri. Connie also had outside employment which included doing personnel work for a medical center, owning and operating an antique store, and working as a psychiatric social worker for a health center.

In 1981, they formed a corporation called Health Care Affiliates, Inc. (HCA), and a single stock certificate representing all of the shares was issued to them jointly. The operations of HCA from 1981 until the sale of the majority of its assets in September 1985, increased the family's income dramatically.

HCA was in the nursing home management business. Both Ewing and Connie were full-time employees of HCA. Ewing was president of HCA and the record leaves no doubt that he was its moving force. Connie dealt primarily with personnel matters.

The success of HCA, which was a "Sub-chapter S" corporation (for tax purposes), is shown by the impact its operations had upon the adjusted gross income of Ewing and Connie, as stated in their joint tax returns:

                1981  --    $69,389
                1982  --    662,754
                1983  --  1,808,268
                1984  --  1,645,513
                1985  --  not filed in this court
                

In September 1985, most of the assets of HCA were sold for $3,000,000. By January 1, 1986, HCA was in the process of liquidation, which had to be completed by July 31, 1986. HCA's employee force, which at one time included 60 office employees and 50 nursing home administrators, was reduced to 5, including Ewing.

At the outset of the liquidation, Connie signed a consent, pursuant to § 337 of the 1954 Internal Revenue Code, authorizing Ewing, as president of HCA, to execute the liquidation of HCA. During liquidation, Ewing used marital funds to purchase an IBM System 36 computer system, which HCA had used under a lease-purchase contract with IBM. During liquidation, some of HCA's equipment was sold. That which was unsold was divided in kind, by Ewing, between him and Connie. The proceeds of the sale of the HCA business were placed in a joint money market account, which required the signatures of both Ewing and Connie for withdrawal of funds. The balance of that account at time of trial exceeded $900,000.

HCA was headquartered in a building on Trafficway in Springfield. The building was owned individually by Ewing and Connie and was mortgaged. HCA occupied the building as lessee.

In early 1986, Ewing formed another corporation called DRI. By this time, the marriage was failing, and Connie filed this dissolution action in April 1986. Much of the dispute centers around Ewing's use of HCA's equipment...