Kahn v. Kahn
| Decision Date | 08 September 1992 |
| Docket Number | No. 60070,60070 |
| Citation | 839 S.W.2d 327 |
| Court | Missouri Court of Appeals |
| Parties | Linda S. KAHN, Appellant/Cross-Respondent v. Farrell KAHN, Respondent/Cross-Appellant |
Rexford H. Caruthers, Nangle, Cooper, Niemann, Bitting & Caruthers, St. Louis, for appellant/cross-respondent.
Alan C. Kohn, John A. Klobasa, Kohn, Shands, Elbert, Gianoulakis & Giljum, St. Louis, for respondent/cross-appellant.
In this dissolution case, Linda S. Kahn, wife, appeals from the trial court's decree. Farrell Kahn, husband, cross-appeals from the decree. We affirm.
Husband and wife were married June 27, 1959. On July 25, 1988, the parties separated. The trial on wife's petition for dissolution began on October 9, 1990.
Following the presentation of evidence, the trial court entered a Decree of Dissolution of Marriage on January 2, 1991. Subsequently, the trial court granted, in part, each party's motion to amend the decree. The trial court entered an Amended Decree of Dissolution on March 20, 1991.
Thereafter, Husband filed a "Motion to Correct the Amended Decree of Dissolution Entered March 20, 1991, So As To Dispose of All Property, Marital and Non-Marital, and to Correct Clerical Errors Nunc Pro Tunc and During the Court's Continued Jurisdiction." Husband subsequently filed a "Protective Motion to Further Amend the Amended Decree." On April 4, 1991, wife filed a "Motion to Correct Mistakes Arising from Oversight or Omission in the Amended Decree of Dissolution Entered March 20, 1991." Wife also filed a "Verified Motion to Vacate and Set Aside Amended Decree Dated March 20, 1991 and Enter New Decree or in the Alternative to Reopen the Case for the Admission of Additional Evidence." The trial court granted, in part, and denied, in part, the parties' motions. On April 12, 1991, the trial court entered its Second Amended Decree of Dissolution.
In her first point, wife contends the trial court "erroneously failed to specify the grounds for setting aside and vacating the Decree of Dissolution and entering the Amended Decree of Dissolution and the Second Amended Decree of Dissolution," because "[t]he absence of specific findings renders the Amended Decree and Second Amended Decree presumptively invalid and warrants reinstatement of the original decree."
Husband contends wife's point was not properly preserved, because she failed to raise it in her list of "issues expected to be raised on appeal" as required under this court's Special Rule A.01(a)(3). The purpose of this local rule is to facilitate screening and docketing procedures of this court. It does not limit the Rules of the Missouri Supreme Court. Wife's point was briefed in accordance with Rule 84.04(a). We will review this point on the merits.
Wife argues that under Rules 75.01 1 and 78.01 2 the trial court was permitted to amend or modify its judgment only upon a showing of "good cause." Further, wife argues, "motions for reconsideration or amendment in a court-tried case impose the same requirements on the trial court as a motion for new trial." Therefore, wife argues, the trial court was required under Rule 78.03 3 to specify the grounds for granting the new trial.
The cases wife cites under this point do not support her argument that a motion to amend in court-tried cases is treated as a motion for new trial, thus requiring the trial court to specify the grounds for granting the motion. 4 To the contrary, a "motion to amend" in a court-tried case is expressly permitted under Rule 73.01(a)(3). Accordingly, Rules 78.01 and 78.03 relating to specification of the grounds for granting a motion for new trial are inapplicable to a motion to amend the judgment in a court-tried case.
Moreover, as noted, the parties' motions to amend were filed within the fifteen days of the entry of the original decree required under Rule 73.01(a)(3). Those timely after-trial motions extended the time after which the judgment became final to ninety days or such earlier date as the trial court ruled on those motions. Rule 81.05(a). Nothing in Rules 73.01(a)(3) and 81.05(a) requires a trial court to specify its grounds amending a decree on the timely motions of the parties. Thus, because the trial court entered its order on the timely motions to amend pursuant to Rules 73.01(a)(3) and 81.05(a), it was not required to specify the grounds for amending the decree. 5 Wife's first point is denied. 6
In her second point, wife alleges the trial court erred in dividing the parties' marital property, because under § 452.330.1 RSMo (Supp.1991), wife was entitled to more of the marital assets and marital income, in that the parties' respective contributions to the acquisition of marital property, the parties' conduct, and the economic circumstances of the parties at the time the division of property is to become effective "overwhelmingly favored [wife] to receive a disproportionate share" of the marital property.
In the second amended decree, the trial court allocated the parties' debt and divided the separate and marital property as follows:
To Wife
Separate Property: $1,187,593.00
Marital Property: 4,224,423.00
Debt Allocation: 220,625.00
NET MARITAL PROPERTY: 4,003,798.00
Percentage of net marital property: 58.8%
To Husband
Separate Property: $ 7,100.00
Marital Property: 3,743,518.00
Debt Allocation: 937,341.00
NET MARITAL PROPERTY: 2,806,177.00
Percentage of net marital property: 41.2%
Section 452.330.1 provides, in part, that the trial 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, ...;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage;
* * *
§ 452.330.1. "The trial court has 'great flexibility and far reaching power' in dividing marital property, and there is no formula respecting the weight to be given relevant factors which the court may consider." In re Marriage of Gourley, 811 S.W.2d 13, 20 (Mo.App.1991) (quoting King v. King, 762 S.W.2d 544 (Mo.App.1989)). We must affirm the divorce decree "if it is supported by substantial evidence, is not against the weight of the evidence, and neither erroneously declares nor applies the law." Harry v. Harry, 745 S.W.2d 824, 825 (Mo.App.1988). Moreover, we presume the trial court considered all the evidence in dividing the marital property. Bixler v. Bixler, 810 S.W.2d 95, 100 (Mo.App.1991).
Under this point, wife asserts the parties' net worth at the time of trial "was almost completely accounted for by [wife's] financial contributions to the marriage through gifts and loans from her father." Wife lists those financial contributions which she asserts consisted of various gifts of stock, oil interests, real estate, and reimbursement of oil operating expenses. Wife asserts the "prior inherited (or gifted) status of property which has been commingled in the marital estate is a totally appropriate factor for the trial court to consider in making a division of marital property."
Husband testified regarding his improvements to and management of the stock, oil interests, and real estate. It is not our function to retry this case; "rather we accept as true the evidence and reasonable inferences therefrom in a light most favorable to the prevailing party and disregard contradictory evidence." Riaz v. Riaz, 789 S.W.2d 224, 225 (Mo.App.1990). "We acknowledge the superior position of the trial court to judge factors such as credibility, sincerity, character of witnesses and other intangibles that are not revealed in a trial transcript." Id. Accordingly, the trial court could consider husband's testimony in determining the contribution of each party to the acquisition of marital property. Nothing in the record indicates the trial court failed to consider the parties' relative contributions when it divided the marital property.
Wife asserts she contributed to the acquisition of marital assets through reimbursements the parties received for operating expenses paid to a company owned by wife's father, Joe Simpkins. We note that at trial wife asserted these reimbursements were loans for which she had signed notes. On appeal, however, wife asserts the sums were gifts from her father. Husband testified at trial that the sums received as reimbursements were gifts from wife's father to husband and wife to assist them in paying the expenses of pending litigation and life insurance premiums on the life of wife's father. We defer to the trial court's determination of credibility in weighing the relative contribution of each party to the acquisition of marital property via the reimbursement of oil operating expenses.
Wife contends husband's losses from investments and projects warranted a disproportionate award of marital property to wife. She asserts, "a review of the facts surrounding many of [husband's] projects reveals that his entrepreneurial efforts cost the marriage more than the marriage gained." Nothing in the record, however, indicates the trial court failed to consider evidence of those losses in determining the relative contribution of the parties to the acquisition of marital property and in dividing that property.
Wife next asserts that in dividing the marital property, the trial court, under § 452.330.1(4), should have considered the conduct of the parties during the marriage. There was evidence husband engaged in more than one extramarital affair and wife engaged in one such affair. Section 452.330.1(4) "was never intended to authorize...
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