Brennan v. Brennan
| Decision Date | 23 September 1997 |
| Docket Number | Nos. 71277,71281,s. 71277 |
| Citation | 955 S.W.2d 779 |
| Parties | Clyde F. BRENNAN, Petitioner-Respondent, Cross-Appellant, v. Mary Agnes BRENNAN, Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Eckelkamp, Eckelkamp, Wood & Kuenzel, Gael D. Wood, Washington, for appellant.
Kopsky & Associates, P.C., John D. Husmann, Co-Counsel, Chesterfield, Lee H. Bushie, Co-Counsel, St. James, for respondent.
Opinion
Mary Brennan (Wife) appeals an amended judgment and decree dissolving her marriage to Clyde Brennan (Husband). During the appeal process, Husband died. His estate cross-appeals. The parties' issues on appeal include: 1) which of two paragraphs of the parties' prenuptial agreement should be applied to control the court's award of maintenance; 2) whether the trial court abused its discretion in valuing items of marital property; and 3) whether the trial court erred by ignoring relevant provisions of the prenuptial agreement in ordering Husband to pay Wife a property division payment, as well as, Wife's attorney's fees.
The parties were married in Rochester, New York, on March 29, 1991. Two days before the marriage, they freely entered into a prenuptial agreement and considered themselves bound by its terms. After the marriage, Wife moved to Husband's home in Gasconade County, Missouri. In October of 1991, Wife went to work at Phelps County Hospital as assistant director for critical care services. She held this job until it was eliminated on January 1, 1994, at which time her salary was approximately $53,000 per year. During the marriage Husband was retired. He received approximately $80,000 per year in investment income. He had approximately $400,000 invested in retirement accounts.
Prior to May 1995, the parties lived together without extraordinary problems. Wife was unhappy because she suspected Husband engaged in some “closet drinking.” On May 8, 1995, Wife's daughter, who, along with her family had been staying with the parties, called Husband a profane term. Wife asked her daughter to withdraw the comment, and she refused. Husband then told all of Wife's family to leave his house. Wife left with her family and did not return for two days. Thereafter, the marriage deteriorated. While Wife was out of the home for those two days, Husband was arrested on a driving while intoxicated charge that was later dropped. After Wife returned and stayed with Husband for a few days, she believed he was drinking. On May 13, 1995, Husband ordered Wife to leave the house. Following what she believed to be a series of unusual actions on the part of Husband, Wife sought and received an involuntary commitment of Husband. The dissolution proceeding followed.
Husband filed a petition for dissolution of marriage on June 2, 1995. Wife filed a motion pendente lite (PDL), upon which the trial court ordered Husband to pay Wife temporary maintenance and $3,000 for attorney's fees. Husband did not contest this amount as a violation of the prenuptial agreement. After Husband failed to compensate Wife for her attorney's fees within a reasonable time, the court found Husband in contempt. Husband was jailed until he paid the attorney's fees. On February 26, 1996, Wife counter-petitioned for dissolution of the marriage. The trial court entered the original judgment and decree of dissolution on June 18, 1996. Both parties filed post-trial motions. The trial court amended the decree of dissolution and entered an order denying both parties' post-trial motions. It awarded Wife an additional $3,000 in attorney's fees plus $3,500 in attorney's fees and costs for Wife's appeal. Both parties appeal. After the appeals were filed, Husband died and his estate was substituted as a party.
Husband and Wife each allege two points of trial court error. We will address Wife's points first. First, Wife argues the trial court erred in applying the provisions of Paragraph 3.2 instead of Paragraph 3.3 of the parties' prenuptial agreement, thereby placing limitations on her maintenance award. Specifically, Wife argues there was no substantial evidence before the court to support a finding Husband's drinking was a reason for the “divorce,” making Paragraph 3.2 inapplicable
.
The pertinent provisions of the parties' prenuptial agreement read as follows:
3.2 Reason(s) for the divorce action shall be established with substantial evidence. If [Husband] begins drinking alcoholic beverages without [Wife's] permission or commits acts of infidelity during the first six years, then he will pay [Wife] $2,000 per month for her life or until she remarries. Such amount will be reduced by [Wife's] income; in the seventh year and thereafter the amount will be reduced by social security benefits paid or payable if drawn out. If [Wife] should commit acts of infidelity, she will leave the farm or other living facility (if the couple are living elsewhere), and provide for herself without seeking any monies or other assets from [Husband]. 3.3 If the parties are incompatible by mutual consent, [Husband] will pay [Wife] $2,000.00 per month for her life or until she remarries. (emphasis added)
.
The parties agree one of the two provisions in the prenuptial agreement applies. The dispute is simply whether Paragraph 3.2 or 3.3 of the prenuptial agreement controls the award of maintenance. Husband's payments to Wife are reduced by her income and social security benefits if Paragraph 3.2 applies. Husband's payments to Wife are not subject to reductions if Paragraph 3.3 applies
.
The trial court concluded Paragraph 3.2 applied. It found Husband's “closet drinking” was a basis for the breakdown of the parties' relationship and their marriage. Conversely, it concluded the parties were not incompatible by mutual consent. It determined the parties had done nothing by mutual consent during the last stages of the marriage, as well as, during the dissolution process.
We will sustain evidentiary findings “unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law.” Murphy v. Carron, 536 S.W. 2d. 30, 32 (Mo. Banc 1976). Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and a firm belief that the decree or judgment is wrong.” Id. “Due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” Rule 73.01(c)(2). A trial court is free to believe or disbelieve all, part, or none of the testimony of any witness. Morgan v. Morgan, 701 S.W. 2d 177, 179 (Mo. App. 1985). When determining the sufficiency of the evidence, an appellate court will accept as true the evidence and inferences from the evidence that are favorable to the trial court's decree and disregard all contrary evidence. Id.
There was substantial evidence to support the trial court's finding that Paragraph 3.2 of the prenuptial agreement controls because Husband began drinking without Wife's permission. First, Wife testified she suspected Husband engaged in some “closet drinking” in 1994, as well as, on the day of the parties' final separation. Second, during Husband's involuntary commitment, the Missouri Department of Mental Health prepared a social service assessment which disclosed Husband's drinking. The social service assessment included a summary of an interview with the Gasconade County Sheriff that when he went out to Husband's farm, he saw a half-empty bottle of whiskey with the “lid” off on the table next to Husband. He described Husband as a “great guy if he could just ‘get off the booze.’ ” Third, Husband's daughter remarked that her father drank a week to ten days prior to the social service assessment. Fourth, Husband's sister said, “he puts alcohol in a Pepsi–Cola bottle, but what he does not know is he cannot smell it himself, however he reeks of alcohol.” Fifth, Wife recalled that while Husband was committed, she returned to the farm to clean up and found “alcohol and bottles of alcohol everywhere.” Finally, the two assessors for the state concluded “[f]urther evaluation [was] necessary, and a treatment team decision be made in regard to alcohol treatment.” They also determined that The trial court's finding that Husband's drinking was a reason for the “divorce action” was supported by the evidence.
We need not detail our conclusion that there was evidence to support the related finding that the parties never agreed they were incompatible and for that alternative reason, Paragraph 3.3 did not apply. Wife's first point is denied.
In Wife's second claim of error, she argues the trial court abused its discretion by first, assigning inappropriate values to marital property not supported by the evidence, and second, based upon the inappropriate values, ordering Husband to pay only $4,000 to Wife, rather than the $16,603 she claimed.
The trial court divided marital property. It awarded a brush hog and a vehicle to Husband and a vehicle to Wife with the car loan to be paid by Husband. It also awarded items of tangible personal property it valued at very nearly $23,000 for each party. The trial court awarded and valued the items as follows:
Description [Husband]-value [Wife]-value
Exterior, pool, garage $ 8,000.00 $ 100.00
Kitchen $ 1,000.00 $ 580.00
Dining Room $ 3,500.00 $ 1,500.00
Great Room $ 4,000.00 $ 1,000.00
Powder room $ 260.00 "0"
Collectibles $ 540.00...To continue reading
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