Branstetter v. Branstetter, 32462

• Decision Date: 20 July 1982
• Docket Number: No. 32462,32462
• Citation: 637 S.W.2d 347
• Parties: Patricia M. BRANSTETTER, Appellant, v. Bertram L. BRANSTETTER, Respondent.
• Court: Missouri Court of Appeals

Page 347

637 S.W.2d 347

Patricia M. BRANSTETTER, Appellant, v. Bertram L. BRANSTETTER, Respondent.

No. 32462.

Missouri Court of Appeals, Western District.

July 20, 1982.

John E. Curran, Osage Beach, for appellant.

James F. Crews, Tipton, for respondent.

Before CLARK, P. J., and MANFORD and KENNEDY, JJ.

MANFORD, Judge.

This appeal arises from a judgment for dissolution of marriage. The appeal is dismissed.

Neither party questions the dissolution of the marriage. The parties filed of record a stipulation that the marriage is irretrievably broken and cannot be preserved. The appellant-wife challenges the decree as to the disposition of marital property.

Six points are presented and are summarized below, but by virtue of the disposition made herein, only points (1) and (2) are addressed and the merits of the remainder are neither reached nor disposed of by this opinion. In summary, appellant-wife alleges (1) the trial court erred in leaving the parties as tenants in common in all marital property, both real and personal, since there was no substantial evidence of a justifiable economic necessity for a tenancy in common; (2) the trial court erred in its failure to assess values upon the marital property; (3) although requested on the record, the trial court failed to issue its findings of fact and conclusions of law; (4) the trial court erred in granting respondent 50% of the marital property because the evidence revealed respondent's misconduct and appellant's greater need; (5) the trial court erred in failing to award appellant maintenance because the court erroneously applied the law under § 452.335, RSMo 1978; and (6) the award of attorneys fees was inadequate as against the weight of the evidence.

The record reveals that the parties were married on November 9, 1962 and that said marriage is registered in Cole County, Missouri. There was one child born of the marriage, Kelly Lynn, born June 19, 1963. The parties, prior to their separation, were married approximately 18 years and resided their entire married life in Barnett, Missouri, when on or about the first day of September 1, 1979, they separated. At the time of trial, appellant-wife was 36 years old and suffered from no physical or mental infirmities. At the time of trial, respondent was 37 years old, employed, and suffered from no physical or mental infirmities. The minor child born of the marriage was a healthy, normal child.

The record further reveals marital misconduct by respondent in his having admitted to an affair with another woman. Appellant-wife was not pregnant at the time of the trial and neither party is a member of the armed forces. Both parties have had at least one and one-half years of college education.

Trial was had upon all issues and a decree was entered. This appeal followed, respondent filed no brief, and argument was waived. This appeal must be dismissed under the ruling of this court in the case of Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977) because said judgment entered herein is not final and hence not appealable. See also Wilhoit v. Wilhoit, 599 S.W.2d 74 (Mo.App.1980) and Davis v. Davis, 544 S.W.2d 259 (Mo.App.1976).

The trial court, in the instant proceedings, entered its decree, enumerating both marital and nonmarital property and set off to the respective parties the properties not designated as marital. The decree then acknowledged an agreement by the parties and pursuant to said agreement, set off to the minor child a 1968 Buick Automobile and a Honda Motorcycle. Under the decree, the court then found the sum of $6,800 as cash marital property removed by appellant from a joint savings account to be the property of the appellant-wife as an offset against the sum of $4,125.63, a cash marital asset received by respondent as a refund from his employer's pension fund, and child support which respondent should have provided from July 1979 to June 1980.

The court then found that a 1976 pickup truck, all household goods, and personal effects found in the possession of respondent were marital property and set the same over to respondent as his sole property.

The court then found that the 1977 Ford Automobile, all household goods and personal effects in the possession of appellant-wife were marital property and set the same to her as her sole property. The court found six additional items to be marital property and in summary, these items were: (1) farming property containing 102 acres, more or less, located in Morgan County, Missouri; (2) real property consisting of Lots (1) and (2) in Block Eight (8), located in Barnett, Morgan County, Missouri; (3) a 1973 Yamaha Motorcycle; (4) an undivided 1/2 interest in all personal property belonging to Branstetter Brothers farm partnership, including, but not limited...