Cofer v. Price-Cofer

• Decision Date: 27 February 1992
• Docket Number: No. 17533,R,PRICE-COFE,17533
• Citation: 825 S.W.2d 369
• Parties: F. Lenward COFER, Petitioner-Respondent, v. Mary Donnaespondent-Appellant.
• Court: Missouri Court of Appeals

Page 369

825 S.W.2d 369

F. Lenward COFER, Petitioner-Respondent, v.Mary Donna PRICE-COFER, Respondent-Appellant.

No. 17533.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 27, 1992.

Ben K. Upp, Springfield, for respondent-appellant.

Thomas D. Dwyer, Springfield, for petitioner-respondent.

SHRUM, Presiding Judge.

In this dissolution of marriage case, the wife, Mary Donna Price-Cofer, appeals from the trial court's division of marital property.Specifically, she complains that the trial court erred because it failed to include as marital property post-separation expenditures of $18,300 made by the husband, F. Lenward Cofer, and that the court awarded too large a portion of marital assets to the husband.We affirm.

FACTS

The parties were married July 22, 1980, and separated in 1989.No children were born of the marriage; from prior marriages, the husband had children and the wife a daughter.

Throughout the marriage and as of the date of the trial, the husband, who holds a master's degree in business administration, was an officer for a Springfield bank.From the date of the marriage until 1986, the wife, who has a Ph.D. in political science, was on the faculty of Southwest Missouri State University(SMSU).She resigned that position in May 1986 after she received an offer to join the faculty of a university in California.However, an illness prevented her from taking the California teaching position.

After treatment of the wife's illness, the parties agreed the wife should obtain a law degree.She entered law school in Kansas City, Missouri, in August 1987 and graduated in May 1990.Her education-related costs and living expenses were paid from several sources.After she became ill, she received a $13,000 disability benefit from SMSU.Some of that benefit was used to pay medical expenses, but, as the wife testified, "essentially it was used for my first two semesters of law school to cover tuition, books, and my living expenses in Kansas City."Contributions from savings and the husband's earnings accounted for at least $25,400 ¹, most of which was transferred by the husband to the wife in monthly installments of $500 to $650.The husband also paid the wife's medical, pharmacy, and automotive expenses.

In December 1989, the husband ceased making monthly payments to the wife.To meet educational and living expenses until her current employment began in August 1990, the wife borrowed $1000 on a short-term basis and then withdrew the $14,000 that had accrued in her state retirement account.As of the March 1991 date of trial, the wife held a two-year appointment as a law clerk to a federal magistrate in Kansas City, Kansas.She was paid between $29,000 and $30,000 for the initial year, and she anticipated an annual increase of $800 to $1000 for the second year of her clerkship.As of the date of trial, she was not licensed to practice law.

A chief issue--at trial and on appeal--concerns the husband's expenditure of $18,300.The expenditures occurred after the parties separated in November 1989 and after the husband filed his dissolution petition in December 1989.Following these two events, the husband consolidated several bank accounts (some in joint names and some individually-titled) into two accounts ², one of which contained funds he considered to be his separate property.He deposited his monthly paychecks into the "separate property" account.As of May 1990, the total of the balances of the two consolidated accounts was $26,000; as of the date of trial, the individual balances in the two accounts were $8,502 and $679.

The husband acknowledged at trial that he had "expended certain funds over and above ... normal, everyday living expenses...."He accounted for the reduction in the consolidated account balances with testimony about the following: $5000 for a Dodge pickup truck; $1500 for vehicle repairs; $2000 for personal medical expenses; $5000 for attorney fees incurred in the dissolution action ³; $3000 for clothing, $4000 for vacations; $1000 for miscellaneous gifts; and $5300 as a gift to a friend who had developed a serious health problem and had been out of work.The husband testified all these expenditures came from the account that contained what he considered marital funds.

The husband admitted that, after he consolidated the bank accounts, he transferred $18,000 to his brother who was to transfer the money to their mother to repay a debt owed the mother by the husband.The brother refused to transfer the money to the mother and returned it to the husband who redeposited the sum into one or both of the consolidated accounts.As of the date of trial, the husband had not repaid the debt to his mother.He did not list her as a creditor on his schedule of assets and liabilities; however, he testified that he still owed her $18,000.After the failed attempt to transfer $18,000 to his mother, the husband made the challenged expenditures.

Evidence concerning the extent of the parties' respective contributions to the marital property is incomplete.The husband purchased the residence in July 1974; after he and the wife married in July 1980, he conveyed it to the wife and himself.There is no evidence in the record about the value of the residence as of July 1980 or the husband's equity in it.There was no testimony to directly establish the existence of a mortgage loan on the property in July 1980; there was testimony that the wife had made no contributions "to the payments of the loan payment or other house expenses since 1986...."It is undisputed that both parties contributed to improvements in the residence--a new roof, a privacy fence, and interior redecorating--but neither assigned a value to those improvements.

The husband testified he owned household goods worth $3000 in July 1980 and that the parties had added household goods of $1000 value since July 1980.The wife testified the husband's household goods contribution was $1000 and that since July 1980they had acquired additional household goods worth $3000.The husband had $10,000 cash as of July 1980.

The husband's total annual income is unknown to us.At trial, he testified his current income included $1000 a year in interest, $1200 a year for a newspaper column he wrote (less estimated annual expenses of $100 to $200), and $100 a month in payments on a note apparently secured by real estate the parties had sold.There was no testimony about the husband's income from his bank employment; the trial exhibit containing that information is not a part of the record on appeal.

With one relatively inconsequential exception ⁴, the trial court determined that all the parties' property was marital because it was "commingled in a fashion that the Court is unable to identify other Non-Marital property of either party."Neither party challenges the trial court's marital and nonmarital property designations.

The court awarded the wife marital property valued at $14,700 ($11,500 cash to be paid by husband to wife; $3000 equity in an Eagle Talon vehicle; $200 cash on hand) plus property about which there was no evidence concerning value: her clothing, personal effects, books, and antiques.The balance of the marital property, including the residence, was distributed to the husband.Debts secured by property were ordered to be paid by the party awarded the property ($9100 on the residence and $16,000 on the Eagle Talon).

In its decree, the trial court did not assign values to the marital property.However, in a letter ⁵, which accompanied copies of the decree, the court explained its reasoning to the attorneys.Portions of the letter follow:

Most of the values of the various items of marital property were agreed or not in dispute.The Court set the value of the real estate at $51,000.00.In its calculations, the Court determined that the marital assets had a total net value of $82,500.00 ⁶.

The Court determines that the contribution of [the husband] to the property greatly exceeded the contribution of [the wife].Some of the property was brought into the marriage by him and he continued to be employed while [the wife] was unemployed and at school.In addition, [the wife] used marital assets to gain her Law Degree, which qualified her for her present employment.

The Court believes that the distribution of marital property is fair and just.

We note that neither party requested the trial court to make findings of fact.SeeRule 73.01(a)(2).

STANDARD OF REVIEW

The scope of our review is set out in Rule 73.01(c) as interpreted in Murphy v. Carron, 536 S.W.2d 30(Mo. banc 1976).We will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.Id. at 32;Mehra v. Mehra, 819 S.W.2d 351, 353(Mo. banc 1991).The phrase "weight of the evidence" means its weight in probative value, not the quantity or amount of evidence.The weight of the evidence is not determined by mathematics; it depends on its effect in inducing belief.Johnson v. Gregg, 807 S.W.2d 680, 685(Mo.App.1991).We defer to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree, disregarding all contrary evidence and inferences.Mehra819 S.W.2d at 353.The party challenging the decree bears the burden of demonstrating error.Calia v. Calia, 624 S.W.2d 870, 872(Mo.App.1981).

POINT I: DISSIPATION OF MARITAL ASSETS

In point I the wife challenges the division of marital property on the grounds that valuation of the marital property is "against the weight of the evidence in that the trial court failed to include as marital property sums of money dissipated by husband after separation and prior to the trial."The wife concedes that the husband's purchase of a truck ($5000), his expenditures for vehicle repairs ($1500), and his...