C---- L---- R---- v. L---- B---- R----

• Decision Date: 16 August 1977
• Docket Number: No. 10224,10224
• Citation: 555 S.W.2d 372
• Parties: C L R, Petitioner-Respondent, v. L B R , Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 372

555 S.W.2d 372

C L R, Petitioner-Respondent, v. L B R , Respondent-Appellant.

No. 10224.

Missouri Court of Appeals, Springfield District.

Aug. 16, 1977.

Charles C. Shafer, Jr., P. C., by Jerry Kenter, Kansas City, for respondent-appellant.

William Icenogle, Camdenton, for petitioner-respondent.

STONE, Judge.

In this litigation instituted in November 1973 as an action for divorce but on January 1, 1974, transmogrified into a proceeding for dissolution of marriage (§ 452.415(2); In re Marriage of Dodd, 532 S.W.2d 885, 886(1) (Mo.App.1976)), Lois, defendant in the action for divorce, brings the case here as appellant, and Charles, who initiated the action for divorce, is respondent here. (All statutory references are to RSMo Supp. 1975; 24 V.A.M.S. (1977).) A brief factual review is necessary for an understanding of (a) Lois' single appellate complaint bearing upon division of the marital property and (b) our disposition of the appeal.

While living in Independence, Missouri, and employed in a nearby industrial plant, Charles met Lois. Each had been theretofore twice married and divorced, and each had children by those former marriages. The transcript picks up the relationship of Charles and Lois when he "moved in" with her and they lived together for an undisclosed period before they were married in Oklahoma on April 11, 1967. ¹

The hapless path that this marital venture was destined to follow to a disastrous end was forecast within the first year or so when, on account of domestic difficulties, Lois twice left home for two-month visits with a sister in Georgia. In fact, the record before us reflects a continuing and exacerbating marital course of crimination and recrimination, charge and countercharge, admittedly accompanied and accentuated on the part of plaintiff husband by the liberal and unrestrained use of vile names and filthy epithets (as he readily conceded) addressed to both his wife and his stepson, Mike, and on the part of defendant wife (so the transcript indicates) by her frequent descent to a gutter level of name-calling. Since a detailed recitation of the numerous episodes, outbursts, paroxysms and tantrums reflected in the transcript would neither aid in proper determination of this appeal nor make any contribution to the law or literature, we simply record without elaboration the fact of their occurrence as reflecting the conduct of the parties during the marriage, that being one of the four factors which courts are specifically directed to consider in the division of marital property. § 452.330, subsec. 1(4); Conrad v. Bowers, 533 S.W.2d 614, 620(6) (Mo.App.1975).

However, notwithstanding the numerous indignities which each visited on the other throughout the duration of the marriage and the frequent periods of separation following stormy scenes in which the parties would vent their spleen on each other, the final separation did not come until September 25, 1973. When on that date, in another of their oft-recurring domestic donnybrooks Charles allegedly began to cuff her around and told her to get out, Lois retaliated by shooting and wounding him. The record does not disclose what area of Charles' anatomy was violated by the bullet, but we are apprised that the resulting injury sent Charles to the hospital for eleven days. The next day after this final brouhaha Lois, accompanied by Mike, left the family home for the last time. Subsequently, Lois was charged with some criminal offense (not here specified) but acquitted on her theory of self-defense.

Although the record does not reveal the exact age of either party, we are informed that sometime during the four-year period from 1967 to 1971 Charles retired at his place of employment and thereafter drew two checks each month, to-wit, a $158.80 "pension" check from his employer and a $199 social security check, which indicates that he probably reached the age of 65 years during that period. From all of the circumstances disclosed in the transcript, including the fact that her son Mike was only 18 years of age at the time of trial in November 1975 and the fact that she then was employed at $700 per month in a responsible position, we think it fairly inferable that Lois is substantially younger than Charles. Although Lois had received no governmental checks or benefits for herself, after Mike's father died in July 1968 she "drew $138 per month from social security . . . because of Michael."

In 1971, the home base of the principals in this running marital feud had moved, under circumstances shortly to be noted, from Jackson County to the house on a rough 60-acre Ozark hill country tract (the farm), of which only 20 to 25 acres were "open land," and to which the real estate broker-witness for Lois euphemistically referred as a "semi-retirement farm." ²

Upon the death of their father in 1968, Charles and each of his four siblings acquired by descent an undivided one-fifth interest in the farm. In 1971, Charles purchased all of his siblings' interests in the farm. Since this transaction was made on the basis of a then market value of $7,000 for the farm, the aggregate cost of the undivided one-fifth interests of the four siblings was $5,600. "(C)losing costs" imposed on Charles increased the amount required of him to $5,950, which was raised (a) by borrowing $5,250 from a bank in the nearby village upon a note signed by both Charles and Lois and secured by a deed of trust on the farm, title to which was taken in the mortgagors' joint names, and (b) by borrowing $700 from "Mike's money" held by Lois.

The real estate broker-witness for Lois at the trial of this case in 1975 was the broker who in 1971 had represented Charles' siblings and in that capacity presumably had acted in good faith and had exercised his best judgment in negotiating the sale of their undivided interests in the farm to Charles based on a then market value of $7,000 for the farm. However, upon trial this broker-witness declared that "I felt that we sold (the farm) below its market value at that time (in 1971)" and "I thought the property should have sold for ten to eleven thousand dollars . . . ." (Emphasis ours)

After finding that the marriage was "irretrievably broken," the court made, inter alia, these additional findings and decretal provisions:

(1) A finding that Charles owned an undivided 20% interest in the farm which he had inherited from his father and that said 20% interest was not marital property.

(2) A finding that Charles owned an undivided 36% interest in the farm "which he received as a gift from his brothers and sisters" and was not marital property.

(3) A finding that the remaining 44% interest in the farm was marital property.

(4) Decretal provisions awarding to Charles the farm and the "household goods and furniture" in the house on that farm.

(5) A decretal provision ordering Charles to assume the indebtedness to the bank secured by deed of trust on the farm and to hold Lois harmless from any liability therefor.

(6) A decretal provision that Charles pay Lois $3,800 (a) as payment for her interest in the farm and in "items" of used furniture in the house and (b) as reimbursement of the $700 advanced by Lois from Mike's funds when the undivided interests of Charles' siblings were purchased. If Charles could not raise $3,800 to make the decreed payment within 45 days, upon his application the court would make such further orders "as necessary to arrange for the payment of said money by decreeing the terms of a promissory note and (second) deed of trust" on the farm.

Although the reasoning by which the trial court arrived at the percentages in findings (2) and (3), supra, was not enucleated by the trial court in the "Judgment Entry" or elsewhere in the record, the explanation appears to be that the difference between (a) the higher figure of $11,000 in the "thought" of Lois' real estate broker-witness that "the property should have sold for ten or eleven thousand dollars" and (b) the agreed market value of $7,000 on which...