Ballard v. Ballard

• Decision Date: 18 June 2002
• Docket Number: No. WD 60142.,WD 60142.
• Citation: 77 S.W.3d 112
• Parties: David Ralph BALLARD, Jr., Respondent, v. Mary Catherine BALLARD, Appellant.
• Court: Missouri Court of Appeals

77 S.W.3d 112

David Ralph BALLARD, Jr., Respondent, v. Mary Catherine BALLARD, Appellant.

No. WD 60142.

Missouri Court of Appeals, Western District.

June 18, 2002.

Karen M. Hunt, Sedalia, for Respondent.

Robert M. Ramshur, Piedmont, for Appellant.

Before ELLIS, P.J., and SMITH and HOWARD, JJ.

EDWIN H. SMITH, Judge.

Mary Catherine Ballard appeals from the judgment of the Circuit Court of Pettis County dissolving her marriage to the respondent, David Ralph Ballard, with respect to the court's division of marital property.

In her sole point on appeal, the appellant claims that the trial court erred in denying her motion for a new trial or in the alternative to amend its judgment of dissolution with respect to its award of marital property because in dividing the parties' marital property as required, the court erroneously declared and applied the law as to what constitutes marital misconduct that will affect the division of marital property under § 452.330.1(4).¹

We affirm.

Facts

The parties were married on July 30, 1983, in Sedalia, Missouri, and separated on December 13, 1999. There were no children born of the marriage. The respondent filed a petition for dissolution of marriage in the Circuit Court of Pettis County on August 24, 2000. On September 11, 2000, the appellant filed an answer to the respondent's petition and her cross-petition for dissolution of marriage. The respondent filed an answer to the appellant's cross-petition on September 19, 2000.

The petition and cross-petition of the parties were heard by the Honorable Robert L. Koffman, on May 1, 2001. At trial, the respondent admitted that he had fathered a child out of wedlock in 1989 and had paid approximately $18,471 in court-ordered child support during the marriage. The respondent also testified that the child lived with the parties for approximately one and one-half to two years from 1997 through 1999. As to the respondent's child, the appellant testified that she attempted to treat the child as her own while he lived in their home.

On the same day of the trial, the trial court entered its judgment dissolving the marriage, setting off to the respondent his separate property and dividing the marital property. The marital property was divided such that the appellant received approximately 64% of the marital estate and the respondent 36%.² The trial court also ordered the appellant to make a cash payment to the respondent of $2,000 to equalize the property division.

On May 11, 2001, the appellant filed a "Motion for New Trial and in the Alternative to Amend the Judgment," alleging, inter alia, that the trial court erred in dividing the marital property because it failed to consider the respondent's marital misconduct in fathering a child out of wedlock and using marital funds to make child support payments for the child. On June 15, 2001, the appellant's motion was heard and overruled by the trial court.

This appeal follows.

I.

In her sole point on appeal, the appellant claims that the trial court erred in denying her motion for a new trial or in the alternative to amend its judgment of dissolution with respect to its award of marital property because in dividing the parties' marital property as required, the court erroneously declared and applied the law as to what constitutes marital misconduct that will affect the division of marital property, pursuant to § 452.330.1(4). Specifically, she claims that the trial court erred in ruling that the respondent's fathering of an illegitimate child during the marriage, using marital funds to support the child, and bringing the child into the marital residence did not constitute marital misconduct affecting the division of marital property in that the respondent's actions did not contribute to the breakup of the parties' marriage.

"In reviewing a trial court's denial of a motion for a new trial, we must indulge every reasonable inference favoring the trial court's ruling and not reverse that ruling absent a clear abuse of discretion." Ashcroft v. TAD Res. Int'l, 972 S.W.2d 502, 505 (Mo.App.1998) (citation omitted). We will find an abuse of discretion if the trial court's denial of the appellant's motion for new trial or to amend the judgment clearly violated the logic of the circumstances or is arbitrary or unreasonable. Id.

Section 452.330, which governs the division of property in a dissolution proceeding, sets forth a two-step process that is to be followed by the trial court: (1) the court must first set aside to each spouse his or her non-marital property; and (2) then divide the marital property and debts in such proportions as the court deems just. Bauer v. Bauer, 38 S.W.3d 449, 458 (Mo.App.2001). The trial court is granted great flexibility and discretion in its division of marital property pursuant to § 452.330. Myers v. Myers, 47 S.W.3d 403, 407 (Mo.App.2001). We presume that the trial court's division is correct, and the spouse challenging the division bears the burden of overcoming this presumption. Rivers v. Rivers, 21 S.W.3d 117, 123 (Mo. App.2000).

"`The division of marital property [pursuant to § 452.330] need not be equal, but must only be fair and equitable given the circumstances of the case.'" Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App.2001) (quoting Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo.App.2000)). However, as a general rule, "the division of marital property should be substantially equal unless one or more statutory or [relevant] non-statutory factors causes such a division to be unjust." Hatchette v. Hatchette, 57 S.W.3d 884, 889 (Mo.App. 2001) (citation omitted). Section 452.330.1 provides, in pertinent part, that in fashioning a fair and equitable division of marital property, the trial court is required to consider all relevant factors, including the five factors set out in the statute. The five statutory factors of § 452.330.1 are not exclusive, and there is no formula determining the weight to be given to the factors in dividing the marital property. Taylor v. Taylor, 25 S.W.3d 634, 640 (Mo. App.2000). One of the five factors, which the trial court is required to consider in dividing marital property, is the "conduct of the parties during the marriage." § 452.330.1(4). It is this factor that the appellant claims the trial court misunderstood and failed to properly apply in dividing the parties' marital property here.

In claiming as she does in this point, the appellant concedes that there was no request for findings of fact and conclusions of law under Rule 73.01(c),³ and the record reflects that the trial court made none in its judgment. However, in support of her claim, the appellant points to the transcript of the hearing on her motion for new trial or to amend the judgment, where the trial court, in response to appellant's counsel's argument and in denying the motion, opined:

Marital misconduct, at least in this Court's opinion, happens in every single divorce. And the law, as I understand it, makes it only significant if it has something to do with the breakup of the marriage. The $18,000 spent on another child not of the marriage was considered by the Court. And I determined that it had nothing to do with the breakup of the marriage, because the [Appellant] lived with that situation over a period of years.

And the statute for marital misconduct in dissolution is not meant to punish, it is meant to make things fair and equal. And for that reason I'm going to overrule. The Court has made its findings, made its order and judgment, and I'm going to leave it there.

The appellant contends that this gratuitous oral finding of the trial court, with respect to respondent's alleged marital misconduct concerning his illegitimate child, demonstrates the court's misunderstanding of the law as to what constitutes misconduct for purposes of marital property division, pursuant to § 452.330.1. In that regard, she asserts that to constitute marital misconduct to justify a disproportionate division of marital property, the proper standard is not whether the misconduct contributed to or caused the breakup of the marriage, as the trial court inferred by its oral finding, but whether it placed an added burden on the appellant, citing Hatchette, 57 S.W.3d at 889 and McNair v. McNair, 987 S.W.2d 4, 6 (Mo.App.1998). She further contends that this misunderstanding of the law led the court to divide the parties' marital property without attaching any significance, as required under § 452.330.1(4), to the respondent's alleged misconduct concerning the illegitimate child, resulting in a division of marital property that is contrary to the law. Thus, as the appellant frames her claim, the first issue for us to decide is whether the trial court erroneously declared the law as to what constitutes marital misconduct justifying a disproportionate division of marital property under § 452.330.1.

"Under § 452.330.1(4), the trial court is required to consider the parties' conduct during the marriage when dividing the marital property." Nelson, 25 S.W.3d at 519. However, misconduct by a spouse cannot be used by the court to punish that spouse by awarding a disproportionate share of the marital estate to the other spouse. Id.; Messer v. Messer, 41 S.W.3d 640, 643 (Mo.App.2001). The rationale for considering the misconduct of the spouses in dividing marital property is that "if one spouse is compelled to contribute more to the partnership endeavor due to the other's misconduct, he or she is entitled to have the errant spouse's misconduct taken into consideration ... in dividing marital property." In re Marriage of Ballay, 924 S.W.2d 572, 578 (Mo.App.1996) (citation omitted). Thus, not all misconduct requires a disproportionate division of marital property. Id. "Even if the trial court believes the evidence of misconduct, it may still divide the marital property in substantially equal fashion." Messer, 41 S.W.3d at 643. "[I]t is only when misconduct of one spouse changes the...