Bean v. Bean

• Decision Date: 26 September 2003
• Docket Number: No. 25215.,25215.
• Parties: David L. BEAN, Petitioner-Appellant, v. Amy Dawn BEAN, Respondent-Respondent.
• Court: Missouri Court of Appeals

115 S.W.3d 388

David L. BEAN, Petitioner-Appellant, v. Amy Dawn BEAN, Respondent-Respondent.

No. 25215.

Missouri Court of Appeals, Southern District, Division Two.

September 26, 2003.

Mark J. Millsap, and J. Matthew Miller, Baird, Lightner, Millsap & Kollar, P.C., Springfield, for appellant.

Richard L. Schnake, Neale & Newman, L.L.P., Springfield, and Gary L. Smith, Smith & Jackson, Lebanon, for respondent.

KENNETH W. SHRUM, Judge.

This is a domestic relations case in which David L. Bean ("Husband") appeals those parts of a dissolution decree that divide marital property and debts, order Husband to pay Amy Dawn Bean ("Wife") maintenance for five years, and award attorney fees to Wife. This court affirms in part; we reverse in part and remand.

FACTS

Husband and Wife were married April 11, 1994, separated in the fall of 2000, and divorced on August 30, 2002.¹ There were no children born of the parties' marriage. Wife, however, had two children by a prior marriage.

Husband, born August 17, 1966, managed an automobile dealership. His 1991 annual salary was $119,821.88 and his monthly "take-home" salary was $7,053.20.

Wife, born March 19, 1969, has a high school education with "a couple of college credits." Her previous employment included working in and having management responsibilities for several small businesses. Wife also ran a diving business acquired by Husband and her in 1995. This involved selling diving equipment, sponsoring diving trips, and providing diving instruction. Husband claimed Wife's training in connection with this business was "pretty extensive," i.e., she was a certified "diving instructor" and open water scuba instructor, had certifications in first aid and CPR, and was a licensed aerobic instructor.

In contrast, Wife suggested that the diving business was one of Husband's "tax dodges" and that she could not "make much" as a diving instructor in Missouri. She also testified she had not spent "a lot of time on [her] career[ ]" as Husband "didn't feel like there was room in [their] relationship for two careers[;]" therefore, she "put things off in order to forward his well-being."

At the time of trial, Wife was working thirty hours per week for a Springfield firm that builds limousines, earning $10.50 per hour. Wife worked only thirty hours at her Springfield job because she taught evening water-aerobics classes for the city of Lebanon at the Cowan Civic Center. As to her future plans, Wife claimed she planned to attend a four-year college course and earn a degree. When asked if the income from her two jobs was sufficient to support her, she answered "no." She testified that if awarded the marital home (which she requested), she needed maintenance in the amount of $3,800 per month for five years.

THE DECREE

The trial judge awarded marital property with net values of $48,614.30 to Husband and $104,314.10 to Wife.² In designating and setting aside to each party their respective non-marital property, the court found "[n]either party has any substantial non-marital property."

Wife's award of marital property included the marital home, which both parties and the court valued at $135,000. She was ordered to pay the first deed of trust debt on the home of $83,958.02. Husband was ordered to pay the second deed of trust on the home ($29,773.80). Additionally, Husband was ordered to pay a $21,211.10 obligation against a Chevrolet Blazer and certain credit cards with balances totaling $3,007.22. As stated in note 2, Husband was also ordered to buy Wife a vehicle having a value of $15,000 and pay Wife's attorney fees of $10,468.75.

In dividing marital property, the trial court found, inter alia:

"It is desirable to award the family home to [Wife] as she expressed interest in wanting to retain it so that she and her children can maintain the standard of living to which they have grown accustomed. Further, [Husband] promised [Wife's] children that they could remain living in the family home.

"Neither [Husband] nor [Wife] has made a greater contribution to the acquisition of the marital property. [Wife], in addition to her employment at the marital business, Blue Water Divers, and in addition to her part-time job at the Cowan Civic Center, made substantial contribution to the family by putting her career plans on hold so as to advance the career of [Husband]."

Finally, Husband was ordered to pay Wife maintenance in the amount of $3,343.22 per month for five years beginning February 1, 2002. Additional facts are given when relevant to a discussion of Husband's claims of trial court error.

SCOPE OF REVIEW

Our review is governed by Rule 84.13(d) and is set out in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976).³ Mistler v. Mistler, 816 S.W.2d 241, 245[1] (Mo.App.1991). Thus, we must affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d at 32[1]. Within the confines of the law and the evidence, the trial court has broad discretion in awarding maintenance, In re Marriage of Liljedahl, 942 S.W.2d 919, 924[2] (Mo.App.1997); dividing marital property, In re Marriage of Gilmore, 943 S.W.2d 866, 876[13] (Mo.App.1997); and awarding attorney fees, Mistler, 816 S.W.2d at 256[18]. On these matters, we review for an abuse of discretion.

DISCUSSION AND DECISION

At the outset, we note Wife has requested that we dismiss Husband's appeal for non-compliance with Rule 84.04(c). Under that rule, a brief filed with this court must contain "a fair and concise statement of the facts relevant to the questions presented for determination without argument." Although Wife's complaint is marginally valid, we exercise our discretion to proceed with the appeal on its merits.

We caution, however, this ruling does not mean we find Husband's brief complies with Rule 84.04. This excerpt from Norman v. Ballentine, 627 S.W.2d 83 (Mo.App.1981), explains our decision to address Husband's claims of reversible error:

"Inadequate briefs of counsel are a disservice to parties so represented and a burden on the system of justice. See Thummel v. King, 570 S.W.2d 679, 686 (Mo.banc 1978). Because of the result here reached, however, suspension of strict application of Rule 84.04 will work no hardship on the respondent. Our jurisdiction is apparent from the record, and we have been able to determine the facts of the case and the issues to be decided from the briefs and transcript. A punitive order of dismissal would serve no purpose here, but we trust that members of the bar will take heed of the warning implicit in our discussion of this matter."

Id. at 85.

Point II: Alleged Error In Division of Marital Property⁴

Husband's second point maintains that the trial court's award of less than 36% of the marital assets to Husband must be reversed because it was "inequitable and against the weight of the evidence in that [Wife] admitted" her marital misconduct, the marriage only lasted six years, and there were extra debts imposed on Husband. These extra debts include the purchase of a $15,000 vehicle for Wife and payment of her $10,468.75 attorney fee, reducing Husband's net marital property award to less than 21% of the parties' total marital property.

Initially, we note Husband's contention that reversal of the marital property portion of the judgment is mandated because (a) the marriage was of short duration and (2) Wife was guilty of marital misconduct, is left wholly undeveloped and unmentioned in the argument part of his brief. Accordingly, those arguments have been abandoned. It is not within the province of this court to decide an argument that is merely asserted but not developed. Bratt v. Cohn, 969 S.W.2d 277, 283[3] (Mo.App.1998).

Turning to the third prong of Husband's argument, the "inexorable" statutory mandate for division of marital property and marital debts is that it be "in such proportions as the court deems just after considering all relevant factors." § 452.330.1; Judy v. Judy, 998 S.W.2d 45, 52 (Mo.App.1999). This does not mean, however, that property and debt division have to be equal; the only requirement is that they be fair and equitable and take into account all relevant factors, including those listed in section 452.330.1.⁵ Cofer v. Price-Cofer, 825 S.W.2d 369, 375 (Mo.App.1992).

There is no formula respecting the weight a trial court should give relevant factors. Poole v. Poole, 977 S.W.2d 940, 945 (Mo.App.1998). As a reviewing court, we assume the trial court considered all the evidence when it divided marital property and marital debt. In re Marriage of Garrison, 846 S.W.2d 771, 777 (Mo.App.1993).

Husband argues that once the additional debts imposed upon him are factored into the division, the resulting division of net assets gives Husband 20.2% and Wife 79.8% thereof. He then argues (without citing supportive authority) that "[t]hese figures considered independently of the statutory factors, under § 452.330, are sufficient to constitute an inequitable distribution of property and an abuse of discretion." We disagree.

An award by a court of considerably more property to one spouse than to the other is not per se an abuse of discretion. Taylor v. Taylor, 25 S.W.3d 634, 640[8] (Mo.App.2000). In fact, the appellate courts of this state routinely affirm highly disproportionate divisions of marital property. Nelson v. Nelson 25 S.W.3d 511, 517 (Mo.App.2000).⁶ No error of law appears simply because the net value of marital property assigned, after debt division, was 20.2% to Husband and 79.8% to Wife. We reject Husband's argument to the contrary.

Having dealt with Husband's claim that the division was per se inequitable we consider his claims that statutory factors mandate reversal. In doing so, we note that the statutory factor "economic circumstances" is broad enough to include a party's enhanced capacity to work and earn...