Breda v. Breda

• Decision Date: 01 May 1990
• Docket Number: No. 56572,56572
• Citation: 788 S.W.2d 769
• Parties: Magdalen BREDA, Petitioner-Appellant, v. Larry A. BREDA, Respondent.
• Court: Missouri Court of Appeals

Page 769

788 S.W.2d 769

Magdalen BREDA, Petitioner-Appellant, v.Larry A. BREDA, Respondent.

No. 56572.

Missouri Court of Appeals,

Eastern District,

Division Two.

May 1, 1990.

Chester A. Love, St. Louis, for petitioner-appellant.

Paul J. Boll, St. Louis, for respondent.

PUDLOWSKI, Presiding Judge.

This is an appeal by wife from a judgment and decree in a dissolution of marriage proceeding rendered by the Circuit Court of St. Louis County.We affirm.

The trial initially commenced before the court on January 23, 1989.It was then continued until February 2, 1989 at which time trial was concluded.During the period between the beginning and end of the trial the parties engaged in settlement negotiations at the suggestion of the court.These negotiations were unsuccessful.The court refused to continue the matter and heard the remainder of the evidence.

A substantial portion of the trial consisted of conflicting testimony from each of the parties relative to the value of husband's contributions to the cosmetology business known as "The Styling Booth;" husband's willingness to work and earn income; causes for the failure of the cosmetology business; and testimony relative to the value of services performed by each and for the nature and extent of liabilities and debts paid by one or the other subsequent to the date of separation.The principal assets and property in dispute at trial were: 1) the real estate and residence at 70 Flesher Drive in Ellisville, Missouri; 2) the parties interest in the corporation and cosmetology business previously operated by them known as "The Styling Booth;" 3) the miscellaneous furniture, tools and assets as set forth on Schedule A of the Court's decree; and 4) an automobile in the respective possession of each party.

At the conclusion of the trial both parties submitted findings of fact and conclusions of law.In his proposed findings husband suggested (with the exception of the automobiles in each party's respective possession)the court order an appraisal of the property and assets, and following such appraisal, and lacking any written settlement agreement between the parties, put them up for sale and divide the proceeds 50% to each party.Wife's proposed findings requested the real property at 70 Flesher Drive be awarded to her with the remaining assets and property of "The Styling Booth" be awarded to husband.In addition, she would pay an additional compensating sum for his interest in 70 Flesher Drive.Lastly, all miscellaneous items of household goods, personal property, etc., were to be awarded to the party in possession of these items.

On February 27, 1989the court entered its judgment and decree.With the exception of awarding each party the automobile in their respective possession, the court directed that all of the assets--unless the parties agreed to a different disposition among themselves in writing--were to be sold and the assets distributed.A paraphrase of the court's decree is as follows: 1) the marital home at 70 Flesher Drive was to be sold and the proceeds distributed 55% to wife and 45% to husband; 2) any and all tangible personal property from "The Styling Booth" to be sold and proceeds to be distributed 50% to each party; and 3) any and all remaining identified and as yet to be identified marital property sold and proceeds to be distributed 50% to each party.

On March 10, 1989 wife filed a motion to alter and amend the judgment.This motion in part, asserted the court failed to set aside to her the value of her non-marital interest in the real estate and to determine and allocate the respective interest in the property.Trial court overruled this motion on March 31, 1989.This appeal ensues.

The issues before us as raised by appellant are: whether the trial court erred in compelling the forced sale of the residence, assets of "The Styling Booth," and other property; whether the trial court erred in finding the residence at 70 Flesher Drive to be wholly transmuted to marital property; and if this determination was correct then whether the trial court erred in failing to award the residence to her.

The first point appellant raises on appeal alleges the trial court abused its discretion in forcing the sale because this was not a remedy available to the court.Appellant states the sale was used as a means to either force an agreement between the parties or avoid making a particularized division of marital property.

The decree or judgment of the trial court shall be affirmed if it could properly have been reached on any reasonable theory unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).The trial court is vested with considerable discretion in dividing marital property, and we will interfere only if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.Dardick v. Dardick, 670 S.W.2d 865, 869(Mo. banc 1984).Generally two...