Cheryl K. Myers v. Don D. Myers

Decision Date14 June 2001
Citation47 S.W.3d 403
Parties(Mo.App. S.D. 2001) Cheryl K. Myers, Appellant, v. Don D. Myers, Respondent. 23735 0
CourtMissouri Court of Appeals

Appeal From: Circuit Court of Barry County, Hon. Scott S. Sifferman

Counsel for Appellant: Ted Von Willer, Jr.

Counsel for Respondent: Carr L. Woods

Opinion Summary: None

Prewitt and Garrison, JJ., concur.

Robert S. Barney, Chief Judge

Cheryl K. Myers ("Wife") appeals from a first amended judgment ("judgment") which dissolved her marriage with Don D. Myers ("Husband"), arguing that the trial court abused its discretion in awarding Husband the bulk of marital property, while not awarding her maintenance or attorney's fees. Wife also maintains that the judgment was against the weight of the evidence. We affirm.

Husband and Wife were married on October 10, 1989. Husband had been married twice previously, while Wife had five previous marriages. Husband owned substantial assets prior to marriage, including several tracts of land consisting of a 45 acre farm known as the "Ray Farm;" 53 acres known as the "Heatherwood Property;" 60 acres known as the "McClure Farm;" and 23 acres, including a workshop and a house where Husband resided, known as the "Doty Property." Husband also owned two automobiles, farm equipment and two small herd of Limousin and Simmental cattle. The assets Wife brought into the marriage consisted of a few pieces of furniture and an automobile that Husband had given her as a gift.

Wife moved into Husband's residence prior to their marriage and they continued to live there until 1994, when Husband sold the 23 acre; the 60 acre, and the 45 acre tracts of land to Skip and Cathy White for $219,000.00, inclusive of a down payment and a promissory note for the balance of $150,000.00, made jointly payable to Husband and Wife. In turn, the down payment was used to purchase another home in Shell Knob, Missouri, for $217,000.00, with the note payments used to make payments on the newly purchased home titled jointly between the parties. Additionally, Husband and Wife purchased a house in Cassville, Missouri, from Eugene and Rose Brooks for $27,500.00 for Husband's mother to reside in, but this house was later used as rental property.

In January of 1997, Husband's 53 acre farm was sold to Michael and Elizabeth Schlichtman for $93,600.00, inclusive of $23,400.00 paid in cash and the balance of $70,200.00 payable in the form of a jointly held promissory note in favor of Husband and Wife. In early December 1997, Husband returned from an extended trip to Montana to find the locks had been changed on the home in Shell Knob and several pieces of his private mail had been rummaged through, including a personal ATM card. Subsequently, Wife filed for dissolution of marriage on December 8, 1997, in Barry County.

In its judgment, the trial court awarded Husband the home in Shell Knob along with the bulk of the remaining assets, totaling approximately 88% of the marital estate. Wife was awarded the rental house and other assets amounting to the remaining 12% of the marital estate. The trial court denied Wife's request for maintenance and ordered each party to pay his or her own attorney's fees.

This Court's review of the trial court's judgment is governed by Rule 84.13(d), and will be affirmed unless it is not supported by substantial evidence, against the weight of the evidence, or erroneously applies the law.1 In re Marriage of Thompson, 24 S.W.3d 751, 753-54 (Mo.App. 2000); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "In reviewing the judgment of a court-tried case, this court views the evidence and permissible inferences drawn therefrom in a light most favorable to the judgment." In re Marriage of Petersen, 22 S.W.3d 760, 763 (Mo.App. 2000). An appellate court should set aside a judgment with caution and only with a firm belief that it is against the weight of the evidence. See In re Marriage of Gibson, 23 S.W.3d 686, 689 (Mo.App. 2000).I.

In her first point of error, Wife maintains that the trial court erred in awarding her 12% of marital property, while awarding 88% of the marital property to Husband. She maintains that this division was against the weight of the evidence and was so heavily weighted in favor of Husband as to amount to an abuse of discretion. Wife contends the trial court did not properly take into account all relevant factors enumerated in section 452.330, RSMo Cum. Supp. 1998.2 We do not agree.

The trial court is afforded broad discretion in dividing marital property. Petersen, 22 S.W.3d at 763. "Awarding one party a considerably higher percentage of the marital property than the other party is not per se an abuse of discretion." In re Marriage of Betz, 880 S.W.2d 618, 623 (Mo.App. 1994). This court will interfere with the trial court's decision only if the division of property is so heavily weighted in favor of one party as to amount to an abuse of discretion. Gibson, 23 S.W.3d at 689; Lance v. Lance, 979 S.W.2d 245, 248 (Mo.App. 1998). Equal division of property is not required, but the division of property should be reasonable, taking into account the factors enumerated in section 452.330.1. Petersen, 22 S.W.2d at 763.

In the case before us, the trial court did not include in its final judgment any findings of fact and conclusions of law in determining the division of marital property, nor were they requested from either party. In the absence of such findings, our review is limited to a determination whether there was substantial evidence to support the trial court's decision, resolving all inferences in favor of its ruling. Taylor v. Taylor, 12 S.W.3d 340, 346 (Mo.App. 2000); Judy v. Judy, 998 S.W.2d 45, 49 (Mo.App. 1999).Given the facts of this case, the most relevant statutory factor that the trial court had to consider in dividing the marital property was the contribution of each spouse to the acquisition of the marital property. Section 452.330.1(2), RSMo Cum. Supp. 1998; see also footnote 3, infra. Our review of the record in this case shows that Husband was possessed of considerably more assets than Wife when they married. Even though much of this property was later transmuted into marital property, this does not "preclude the trial court from considering the premarital contribution in dividing the marital property." Petersen, 22 S.W.3d at 763 (quoting Gremaud v. Gremaud, 860 S.W.2d 354, 357 (Mo.App. 1993)). Husband presented evidence that he owned several tracts of land prior to the marriage. The sales of Husband's tracts of land were the bases for the down payment of the marital home, the rent house, and other assets acquired during the marriage. Husband also testified that he received a retirement from his 26 years of service with the Missouri State Highway Patrol, retiring in March of 1992. During his marriage to Wife, he worked for the Highway Patrol only three years. Husband and Wife both testified that Wife did not bring any substantial assets into the marriage. While during the eight years the parties lived together Wife engaged in household chores and assisted with the cattle operation and in remodeling activities, her main source of outside income was from a used clothing store known as "Elite Apparel," which was established primarily with Husband's money. This latter entity, however, had ceased operations at the time of the dissolution of marriage action.

Wife points to several cases to support her contention that this Court should reverse the trial court when its ruling is against the weight of the evidence and is too heavily weighted in favor of one party. In one such case cited by Wife, In re Marriage of V.A.E., 873 S.W.2d 262 (Mo.App. 1994), the appellate court reversed a similar award where the wife was awarded 88% of the marital property. The marital home was awarded to the wife and amounted to approximately 75% of the marital property. Id. at 268. The appellate court ruled that no substantial evidence existed for such a disparate award, and that the division of property was arbitrary and unreasonable. Id. at 269. The appellate court premised its reasoning on the fact that there was no evidence suggesting that the wife had done more than the husband in contributing to the acquisition of marital property. Id. Furthermore, the appellate court observed that there was no evidence suggesting that husband's conduct was a greater factor than wife's in the failure of the marriage. Id. The present case is distinguishable from V.A.E., in that the evidence did indicate that Husband's contributions to the acquisition of marital property far outweighed those of Wife. Further, the marriage of Wife and Husband did not occur early in their lives, as in V.A.E. The present case is more akin to In re Marriage of Betz, supra. In that case, the husband, in his early fifties, and wife, in her early forties, were married, each for a second time. Betz, 880 S.W.2d at 619. The husband had assets totaling over $300,000.00 that he brought into the thirteen year marriage, while the wife brought $3,700.00 worth of assets into the marriage. Id. The trial court in that case awarded the husband roughly 65% of the marital assets, and the wife appealed this ruling. Id. at 621. The appellate court upheld the trial court's decision, noting that "[d]isparity in the value of marital property awarded each spouse is appropriate if the relevant factors, statutory or otherwise, justify an unequal division." Id. at 623.

Here, while there is a large disparity in the amount of marital property awarded to each party, as previously set out, there is evidence in the record to support the trial court's decision, despite the claim by Wife that it was an abuse of discretion.3 Abuse of judicial discretion has been defined by the Missouri Supreme Court as an "untenable judicial act that defies reason and works an injustice." Betz, 880 S.W.2d at 623 (quoting Moore v. Board of Education of Fulton Public School No. 58, 836 S.W.2d 943, 948 ...

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