Buchheit v. Buchheit

• Decision Date: 04 April 1989
• Docket Number: No. 55007,55007
• Citation: Buchheit v. Buchheit, 768 S.W.2d 641 (Mo. App. 1989)
• Parties: Kenneth L. BUCHHEIT, Respondent-Appellant, v. Patricia F. BUCHHEIT, Petitioner-Respondent.
• Court: Missouri Court of Appeals

Page 641

768 S.W.2d 641

Kenneth L. BUCHHEIT, Respondent-Appellant, v. Patricia F. BUCHHEIT, Petitioner-Respondent.

No. 55007.

Missouri Court of Appeals,

Eastern District,

Southern Division.

April 4, 1989.

James Michael Payne, Cape Girardeau, for respondent-appellant.

Richard Mark Goldstein, Cape Girardeau, for petitioner-respondent.

CRANDALL, Judge.

Husband, Kenneth L. Buchheit, appeals from the decree of dissolution of marriage from wife, Patricia F. Buchheit. We affirm.

Husband and wife were married on February 29, 1984. They separated on July 22, 1986. At the time of the dissolution, wife was 41 years of age and husband was 40. No children were born of the marriage. Wife had a daughter who resided with the parties.

Husband and wife both worked for a state university. At the time of dissolution, wife was earning approximately $940 per month. Husband's monthly earnings were about $1,116, plus $200 for a refrigeration rental business which he operated for the university. Husband also raised Apaloosa horses. During the marriage, he and wife resided in a house on husband's parents' farm for which they paid $100 per month in rent. Husband furnished considerable labor to make improvements to the parents' farm incident to his horse business, with his parents purchasing the building materials for these projects. Husband supplemented his income by working as a carpet layer; but a back injury made it unlikely that he could continue to earn this extra money.

Husband admitted to having an extramarital affair with another university employee who worked in the same department as he and wife. He contended that the affair began only after the parties separated and wife filed the dissolution action. Prior to that time, husband asserted that he was merely friends with the woman. At the time of dissolution, the woman with whom husband was involved was pregnant.

Wife testified that husband rejected her sexually. She also accused him of physically abusing her, of threatening her with physical abuse, and of throwing objects at her. All of these incidents occurred during husband's frequent outbursts of anger. Husband denied these charges.

During the marriage, wife left husband on several occasions for short periods of time. She was suspicious and jealous of husband's relationships with other women.

In the decree of dissolution, the trial court found that husband's conduct contributed substantially to the breakdown of the marriage. The court specifically noted husband's sexual misconduct and his mistreatment of wife. The court found that wife's conduct was also a contributing factor to the breakdown of the marriage, but to a lesser extent than husband's. The court set aside certain property as separate and divided the marital property as follows:

1. In its amended decree the trial court found that the property awarded to wife totalled $6,475, as reflected by the property division in the original decree. That figure does not comport with values assigned to the items in the original decree. We assume, therefore, that $5,075 is the correct total of that portion of the marital property set aside to wife.

2. Husband disputes the value assigned to the Jeep by the court. The trial court, however, is not bound by husband's valuation of certain property. In her property statement which was admitted into evidence, wife indicated that, after she had filed for dissolution, husband had purchased the Jeep for $13,000.

TO WIFE
                1983 Ford Escort                                      $ 3,800
                Household goods                                           500
                Personal goods                                            250
                Cash                                                       25
                Tax Sheltered Annuity                                     500
                                                        ---------------------
                                                                        5,075   1
                1. In its amended decree the trial court found that the property awarded to
                   wife totalled $6,475, as reflected by the property division in the original
                   decree.  That figure does not comport with values assigned to the items in the
                   original decree.  We assume, therefore, that $5,075 is the correct total of
                   that portion of the marital property set aside to wife
                Plus: money due from husband                           k6,000
                                                        ---------------------
                                                 TOTAL                $11,075
                TO HUSBAND
                Horse trailer                                          $  300
                Two Honda three-wheelers ($2,200 less                     737
                  $1,463 debt)
                1986 Jeep ($13,000 less $11,309 debt)                   1,691   2
                2. Husband disputes the value assigned to the Jeep by the court.  The trial
                  court, however, is not bound by husband's valuation of certain property.  In
                  her property statement which was admitted into evidence, wife indicated that
                  after she had filed for dissolution, husband had purchased the Jeep for
                  $13,000
                Checking Account                                          300
                Checking Account                                           77
                Savings Account                                           523
                Household goods                                           500
                Cash on hand                                               23
                Tax Sheltered Annuity                                     800
                8 Apaloosa Horses                                       4,800
                                                        ---------------------
                                                                        9,752
                Less: money owed to wife                               (6,000  )
                                                        ---------------------
                                                 TOTAL                $ 3,752
                

The court also ordered husband to pay $750 of wife's attorney's fees.

The standard of our review of a court-tried case is enunciated in the oft-cited Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When there is a conflict in the evidence, the trial court determines the credibility of the witnesses. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). The judgment of the trial court is to be affirmed under any reasonable theory supported by the evidence. Id. Deference...