Bland v. Bland

• Court: Missouri Court of Appeals
• Writing for the Court: GAERTNER; SNYDER, P.J., and DOWD
• Citation: Bland v. Bland, 652 S.W.2d 690 (Mo. App. 1983)
• Decision Date: 29 March 1983
• Docket Number: No. 45500,45500
• Parties: John Keith BLAND, Petitioner-Appellant, v. Brenda Louise BLAND, Respondent-Respondent.

Page 690

652 S.W.2d 690

John Keith BLAND, Petitioner-Appellant, v. Brenda Louise BLAND, Respondent-Respondent.

No. 45500.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 29, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

May 13, 1983.

Ronald F. Borgmann, St. Louis, for petitioner-appellant.

Robert Susman, St. Louis, for respondent-respondent.

GAERTNER, Judge.

Husband appeals from the trial court's division of property in a dissolution action. His assignment of error can be synopsized into three categories:

1. Abuse of discretion in considering as relevant to the disposition of property a) husband's withdrawal and secretion of funds from joint savings accounts, and b) his apparent misrepresentation to the court concerning the filing of answers to interrogatories;

2. Failure to consider all statutory factors relevant to division of property; and

3. Ordering a division of household furnishings based solely upon an oral stipulation at trial.

The parties were married in December of 1968 and ceased cohabiting in May, 1981. During the marriage both were employed, earning roughly equivalent salaries from which they contributed equally to household expenses. The couple had no children. The trial court divided the marital property as follows:

Awarded to Husband          Equity
                -----------------           ------
                1979 automobile           $ 3,000.00
                silver certificates         4,860.44
                treasury bonds              1,600.00
                insurance policy            1,300.00
                                          ----------
                                          $10,760.44
                Awarded to Wife             Equity
                ---------------             ------
                family home               $18,036.53
                1973 automobile             1,000.00
                First National Bank C.D.    3,373.00
                insurance policy              805.00
                                          ----------
                                          $23,214.53
                

There was undisputed evidence that following the separation of the parties, the husband withdrew from joint savings accounts sums found by the court to approximate $10,800. He contended at trial that this money was used to pay marital expenses. The trial court rejected this contention, finding "no justification for petitioner expending, secreting or transferring to his own name" the sums involved. The trial court also noted that "although respresenting (sic) to the court on January 7, 1982 that answers to interrogatories propounded to petitioner had been filed, as of 1/14/82 said answers were still not received." ¹ The court stated its unequal division of property was a consequence of these two factors.

Our standard of review is established by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). Therefore, the trial court's determination of no justification for husband's withdrawal of the $10,800 must be upheld unless there is no substantial evidence to support it or unless it is against the weight of the evidence. The withdrawal and the joint ownership of the funds was not disputed. The trial court was at liberty to believe or disbelieve the husband's explanation that he used the funds to pay marital expenses. In Re Marriage of Jackson, 592 S.W.2d 875, 877 (Mo.App.1980). In light of the vague and indefinite testimony of the husband in this regard, unsupported by any form of receipts or recorded account, we cannot say the rejection by the trial court of this explanation was unjustified.

Having found the withdrawal of the funds to be unjustified, it was appropriate for the court to effect reimbursement thereof. Calia v. Calia, 624 S.W.2d 870, 872 (Mo.App.1981). This was accomplished by awarding the wife property valued at approximately $12,000 more than that awarded to the husband who had appropriated $10,800 to himself. In dividing marital property, the court is not confined to "rigid methods or mechanics" nor to absolute equality. Calia v. Calia, 624 S.W.2d at 872; Hilger v. Hilger, 570 S.W.2d 736, 740 (Mo.App.1978).

Viewed in this light, even if it be considered improper for the court to consider the late filing of interrogatory answers as a factor in dividing marital property the husband has not been harmed thereby and he can demonstrate no prejudice which would warrant reversal of the trial court's determination. Miller v. Miller, 635 S.W.2d 350, 352 (Mo.App.1982).

Husband further contends the trial court erred in failing to consider in its division of marital property that marital funds were used for maintenance and upkeep of the separate property of the wife. The court found that real estate in East St. Louis, Illinois was not marital property, but was a gift to the wife from her mother. As such, that property was not subject to judicial disposition. Section 452.330.2(1), RSMo 1978. The husband did not dispute this fact. There was evidence that the cost of maintaining the property was offset by rental income and the trial court so found. This express finding belies the husband's contention that this factor was not considered by the court. The point has no merit.

The two remaining assignments of error require remand to the Circuit Court. The wife admitted the accumulation of $4,000 after separation of the parties which she held in savings accounts. This money is not mentioned by the trial court in its decree. It constituted property acquired "subsequent to the marriage and prior to a decree of legal separation" and is therefore presumed to be marital property. Section 452.330.3, RSMo 1978. There being no evidence tending to overcome this presumption, the $4,000 fund should have been considered by the court in its division of marital property.

During the trial the parties orally stipulated that they had agreed "as to how they are going to dispose of household furnishings between them." Nothing further was brought before the court regarding these items, no itemization or evaluation thereof, nor the proposed division thereof. Although the decree takes note of this stipulation, nothing concerning household furnishings is included in the decree. The husband filed a motion to vacate the judgment asserting, among other matters, the failure of the court to divide the household furnishings. The trial court overruled this motion.

Turpin v. Turpin, 570 S.W.2d 831, 835 (Mo.App.1978), presented comparable facts. There it was held that an oral recitation in open court of a purported agreement regarding the division of property was inadequate because the court did not have before it all the factors necessary to...