Brock v. Brock, s. 67996

• Decision Date: 14 January 1997
• Docket Number: Nos. 67996,68789,s. 67996
• Citation: 936 S.W.2d 882
• Parties: Louis BROCK, Appellant/Cross-Respondent, v. Virgie BROCK, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 882

936 S.W.2d 882

Louis BROCK, Appellant/Cross-Respondent, v. Virgie BROCK, Respondent/Cross-Appellant.

Nos. 67996, 68789.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 14, 1997.

Gary J. Morris, L.C., Ralph Levy, III, L.C., Morris, Seltzer & Levy, Clayton, for Appellant.

R. Jon Bopp, Ballwin, for Respondent.

HOFF, Judge.

Louis Brock (Husband) appeals the judgment and decree entered by the trial court dissolving his marriage. Husband challenges the trial court's judgment in regard to: (1) the distribution of property; (2) orders concerning the marital residence; (3) a maintenance award to Wife; (4) child custody and child support; and (5) attorney's fees. Virgie Brock (Wife) cross-appeals a post-judgment enforcement order of the dissolution decree regarding the sale of the marital residence. We affirm the decree in part; reverse the decree in part and remand for further hearing; and dismiss the cross-appeal.

The parties were married on November 1, 1976. Two children were born of the marriage, who were ages 15 and 16 at the time of trial. Husband filed his petition for dissolution of marriage on October 16, 1993. A trial was held in December of 1994. The trial court filed its judgment dissolving the marriage on March 17, 1995.

On August 21, 1995, the trial court held Wife in contempt for continuing to disregard orders contained within the dissolution of marriage decree regarding the sale of the marital residence and violating a related order of enforcement granted to Husband. While incarcerated for contempt, Wife complied with the trial court's order by signing the documents in controversy and was released from custody. This appeal of the dissolution of marriage decree and cross-appeal of the enforcement order followed.

On appeal, the judgment must be affirmed if it is supported by substantial evidence, is not against the weight of the evidence and neither erroneously declares nor applies the law. Mills v. Mills, 663 S.W.2d 369, 371 (Mo.App.1983). The appellant bears the burden of demonstrating trial court error in the judgment. Calia v. Calia, 624 S.W.2d 870, 872 (Mo.App.1981). Additionally, we will defer to the trial court's determinations as to the credibility of witnesses. Mills, 663 S.W.2d at 371.

On direct appeal, Husband's first six points allege the trial court erred in its distribution of property. First, Husband asserts the trial court erred in dividing the marital property because it awarded Wife a total of $315,812 when the total value of all the marital property was only $81,624. He also alleges the trial court erred in valuing shares of Brockworld Products, Inc. (Brockworld) stock and failing to distribute all the shares. Additionally, Husband contends the trial court erred in entering a cash judgment against him in the amount of $227,500 as an offset for receiving Wife's share of the marital stock because the stock has no value and the remaining $50,380 does not correlate with any division of property, award of maintenance or support.

Furthermore, Husband asserts the trial court erred in dividing Husband's accrued but unpaid salary from Brockworld. Finally, Husband alleges the trial court's decree is deficient because it does not make sufficient findings of fact as to the items of marital property and their value as required by Missouri law.

We find Husband's second point to be dispositive of the property division and accordingly must reverse the entire property portion of the dissolution judgment.

In Husband's second point, he contends the trial court abused its discretion in awarding Wife $177,120 as an offset for 177,120 shares of Brockworld stock which the trial court found to be her share of the marital stock. Husband argues there was no substantial evidence to support the value assigned to the stock by the trial court because all evidence established that the stock had no market value.

At trial, the only evidence regarding the value of the Brockworld stock was a Brockworld balance sheet offered by Husband. This balance sheet was prepared by a Brockworld bookkeeper and was offered with little foundation or explanation. According to this exhibit, the stockholder's equity was a negative $167,580. Neither party offered expert testimony as to the value of the Brockworld stock. Furthermore, there was no definitive testimony by any witness as to the value of the Brockworld stock.

From our review of the balance sheet, there is not substantial or competent evidence to support the trial court's implied value of the Brockworld stock as one dollar per share, a total value of $371,250. Since the proper value of the Brockworld stock is essential to achieving a just division of property, we must reverse the entire portion of the dissolution decree regarding the division of property and remand to the trial court for further hearing. As a result, we will not otherwise address Husband's other five points regarding the division of property.

Husband's seventh and eighth points relate to trial court orders concerning the sale of the marital residence. Husband contends the trial court erred by ordering Husband to pay any costs of preparing the marital residence for sale and costs of any necessary major repairs to the house before sale because the trial court ordered these costs to be based on the recommendation and at the sole discretion of the listing agent. Additionally, Husband asserts the trial court erred by failing to order deductions of Husband's payments on the first and second mortgages, major repairs, and insurance from the sale proceeds before the division of those proceeds between Husband and Wife. Because we find the entire property division must be reversed and remanded and the marital residence is an integral part of the marital property, we will not address Husband's seventh and eighth points. Upon rehearing, the trial court is directed to be more specific regarding the division of the marital residence and any credits for payments made by either party. In addition, necessary home repairs should not be ordered based on a third party's discretion except by agreement of the parties.

In his ninth point, Husband argues the trial court erred in awarding Wife permanent maintenance because there was no substantial evidence to support such an award. Husband contends Wife is able to support herself by appropriate employment outside the home and her circumstances as custodian of the children make it appropriate for her to seek employment outside the home.

A trial court has broad discretion in determining maintenance. Rich v. Rich, 871 S.W.2d 618, 624 (Mo.App.1994). In a marriage where a spouse relies on the other spouse for monetary support, and is out of the marketplace, thereby injuring the spouse's marketable skills, this type of reliance may warrant an award of maintenance. Woolsey v. Woolsey, 904 S.W.2d 95, 99 (Mo.App.1995). Section 452.335.1 RSMo 1994 provides:

In a proceeding for ... dissolution of marriage ..., the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.

Additionally, the trial court has broad discretion in determining the duration of a maintenance award. Rich, 871 S.W.2d at 622. We will not disturb a permanent maintenance award unless the trial court abused its discretion. Id. Furthermore, a trial court is only justified in limiting the duration of a maintenance award when substantial evidence of an impending change in the financial conditions of the parties exists. Id. at 623. In order to limit the duration of a maintenance award, there must at least be substantial evidence that such a change will occur. Id. If no such evidence exists, the maintenance award should be for unlimited duration subject to modification if either party's financial conditions changes. Id.

The trial court found Wife "to be in good health and capable of gainful employment," so the trial court imputed income to Wife in the amount of $1,000 per month. Additionally, the trial court found that Wife had "no recent employment history and is unable to completely support herself through appropriate employment." Furthermore, the trial court found that Wife "lack[ed] sufficient property, including marital property apportioned to her to provide for her reasonable needs."

The evidence at trial supports the trial court findings. The evidence indicates that although Wife has a lifetime teaching certificate in the State of Missouri that allows her to teach math from seventh to ninth grade as well as French from seventh to twelfth grade, at the time of trial she had not taught school for over 18 years. Immediately before Husband and Wife were married, Wife quit her teaching job because it interfered with Husband's travelling schedule while playing professional baseball. The evidence also indicates that Wife is the primary custodian of the couple's two minor children. Additionally, there is no evidence that Wife's financial condition will improve in the future.

Husband argues that a maintenance award should not have been granted because his expert testified to the availability of jobs for a person with Wife's educational background. However, the evidence indicates that Husband's expert never met or talked with Wife. Husband's expert admitted he had never before attempted to find employment for a teacher with Wife's experience and qualifications who had not taught school for over 18 years. Given the evidence presented at trial, the trial court did not abuse its discretion by concluding that Wife was not immediately employable as a teacher and that her earning capacity was uncertain....