Conrad v. Bowers

• Decision Date: 16 December 1975
• Docket Number: No. 36422,36422
• Citation: 533 S.W.2d 614
• Parties: Edward CONRAD, Administrator of the Estate of Fred J. Bowers, Respondent, v. Essie BOWERS, Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 614

533 S.W.2d 614

Edward CONRAD, Administrator of the Estate of Fred J Bowers, Respondent, v. Essie BOWERS, Appellant.

No. 36422.

Missouri Court of Appeals, St. Louis District, Division Three.

Dec. 16, 1975.

Charles W. Medley, Farmington, Robert A. Dempster, Sikeston, for appellant.

Roberts & Roberts, Geoffrey L. Pratte, Farmington, for respondent.

SIMEONE, Presiding Judge.

This cause involves the construction of the recently enacted dissolution of marriage law adopted by the general assembly, §§ 452.300--452.415, RSMo Supp.1973, and specifically involves the interpretation of the term 'marital property' as used in that act. While the facts are rather simple, the legal issues are complex and are not easily resolved.

This is an appeal by the appellant, Mrs. Essie Bowers, from a decree entered by the circuit court of Madison County on May 20, 1974, which dissolved the marriage between her and Mr. Fred Bowers and which divided certain real and personal property between the parties. ¹ The parties did not contest the decree insofar as it relates to the dissolution; all agree that there was no reasonable likelihood that the marriage could be preserved and that the marriage was irretrievably broken, but the appellant-wife contends that the trial court erred in awarding all of the real estate to the husband, Fred, because the court's finding 'constituted an abuse of judicial discretion and was against the weight of the creditable (sic) evidence.' For reasons hereinafter stated, we affirm the result reached by the trial court.

A detailed review of the evidence is not necessary for the resolution of the issue presented-whether the court erred in awarding all of the real estate to the husband. The appellant, Mrs. Bowers, does not contest that portion of the decree awarding custody of the minor child, Fred, Jr., to the husband, but she does vigorously contend that the court erred in (1) awarding all the real estate to the husband because the court allegedly held that the real property acquired after the marriage had been acquired with funds derived from the sale of property which the husband owned prior to the marriage, and (2) not taking into consideration the various relevant factors listed in § 452.330, subsection 1. In oral argument before this court, appellant also contended that, in dividing the marital property, the trial court may consider only such 'conduct' of the parties during the marriage as relates to financial matters and it may not consider socially unapproved conduct, unrelated to financial matters.

On November 23, 1973, Fred J. Bowers filed his petition for 'divorce' under the law then in existence. He sought a 'divorce' and custody of the parties' one child, Fred, Junior. On May 15, 1974, Mr. Bowers amended his petition alleging that the marriage was 'irretrievably broken.' On December 20, 1973, Mrs. Bowers filed her cross-bill also seeking a 'divorce,' custody of the child, Fred, Jr., and division of the property. The cause was tried under the new dissolution of marriage act.

                        Property         Value       Mortgage      Equity          Title
                      -------------  --------------  --------  --------------  --------------
                  1.  Lombard        $35,000-45,000  $7,000    $28,000-38,000     Husband
                  2.  Elmhurst       $10,000-15,000  $3,000     $7,000-12,000  Husband k Wife
                  3.  Fredericktown     $17,500      $3,000 k      $4,500      Husband k Wife
                                                     $10,000
                                                       loan
                

During the marriage, Mr. Bowers purchased several items of personal property, including a 1971 Mercury Marquis, an organ for $2900 and some other personal property.

The parties during the marriage had innumerable difficulties. For some periods of time prior to November, 1973, Mrs. Bowers' four other children by a prior marriage were living in the Fredericktown home. Ethel, Essie's sister, and her husband, Billie Bob Todd, and their children, and Evelyn, also Essie's sister, were living with the Bowers at the Fredericktown house and had been there for some two weeks. One week, Ethel took ill and was taken to the hospital. Some time later she returned. A day after Ethel returned from the hospital to the Bowers' home, Mrs. Bowers and Billie, Ethel's husband, left the Bowers' home at the same time with two of the children.

When Mrs. Bowers and Billie Bob, Ethel's husband, left the Bowers' home on November 2, 1973, they left in their respective automobiles. Mrs. Agnes McCollum, a witness for Mr. Bowers, testified that she owned a certain mobile court in Sikeston, Missouri. She testified that Mrs. Bowers came to her mobile apartments in November and told her 'they'--Mrs. Bowers, Mr. Todd and two children--wanted to rent an apartment. They lived there a week. Ethel, also a witness for Mr. Bowers, testified that she found her husband and Mrs. Bowers at that apartment--that she went there and asked 'the lady if Essie and Bob Todd rented that apartment. She said, 'Yes. " This was denied by Mrs. Bowers and other witnesses, who insisted that she worked and lived in New Madrid in a motel for room and board. In any event, there was evidence that when Mrs. Bowers left the home she took the Mercury and sometime later removed a 24' color TV set, a 24' Olympic TV, a Grundig stereo, the Wurlitzer organ, boxes of clothing, an electric steam ironer, some furniture, two air conditioners and various other items. She did not remove a 1966 station wagon or some household items such as the stove and washer. She did remove some bedroom sets but left others. When she left the Bowers' home she also had in her possession certain credit cards of Mr. Bowers'--Bank Americard, Shell, Standard Oil and Penneys. During the period after she left the Fredericktown home, she charged certain items of clothing, merchandise and gasoline amounting to a total of $2,388.17, on these credit cards.

At the time of the dissolution hearing, Mr. Bowers was retired and was 66 years old. He had a monthly income of $233.00 from social security for himself and $49.70 for Fred, Junior. He was also receiving some rent now and then from two other properties. Mrs. Bowers had an eighth grade education and was thirty-eight years of age at the time of the hearing.

Mr. and Mrs. Bowers lived together from 1967 until November, 1973. Mrs. Bowers' version of leaving in November was that she had 'enough' and 'I was going to leave whether he (Billie Bob Todd) went or not,' because she was 'tired of working and cooking and washing clothes and looking after everybody.'

On May 20, 1974, after the hearing, the trial court entered its judgment. The court, after making certain findings, found that Mr. Bowers,

'. . . prior to the marriage of the parties, was the owner of real estate and property, including the Lombard property . . . and certain apartment buildings of a greater value than the property now owned, and that the acquisition of the property hereinafter referred to as the Elmhurst property, (and the property?) in Fredericktown, and the equity therein were (sic) acquired with the proceeds of the property previously owned by the petitioner (Mr. Bowers) . . . and that in equity the petitioner should be sole and exclusive owner of all such real estate and the respondent (Mrs. Bowers) should have no interest therein. The Court further finds that all of said property is marital property . . ..' (sic)

The court ordered that (1) the marriage be dissolved, (2) Mr. Bowers have custody of the son, subject to visitation rights, (3) all the real estate be awarded to Mr. Bowers, and Mrs. Bowers execute the proper deeds, (4) Mrs. Bowers retain the personal property in her possession, ² and Mr. Bowers retain the personal property in his possession, including the 1966 station wagon; (5) Mrs. Bowers' attorney be paid by Mr. Bowers, and (6) Mr. Bowers be held responsible for 'all' indebtedness owed by the parties. ³

Mrs. Bowers appealed, urging this court to reach our own results and enter an appropriate judgment because of the 'great discrepency' in the division of marital property.

Our review on this dissolution of marriage case is the same as it was in a divorce case. It is our duty to review the case do novo upon both the law and the evidence and to reach our own independent conclusions, based on the law and the evidence presented. In doing so, however, we give due deference to the trial court's assessment of the credibility of the witnesses, since it has a superior opportunity to observe them, and in case of conflict in the evidence we apply the rule of deference. We will not set aside the judgment unless it is erroneous. Powers v. Powers, 527 S.W.2d 949, 954 (Mo.App.1975); S_ _ v. S_ _, 514 S.W.2d 1, 4 (Mo.App.1974), and cases cited therein; Oliver v. Oliver, 325 S.W.2d 33, 38 (Mo.App.1959); Forrest v. Forrest, 503 S.W.2d 80, 83 (Mo.App.1973); D_ _ M_ _ S_ _ v. P_ _ E_ _ S_ _, 526 S.W.2d 361, 362 (Mo.App.1975); Rule 73.01(3).

The issues presented as we view them are (1) whether the trial court may consider 'the conduct of the parties during the marriage' as one of the relevant factors in dividing the marital property; (2) and if so, what constitutes such 'conduct' which may be considered; (3) whether the court erred in dividing the 'marital property' shown in the evidence; (4) whether the law of Missouri--that property acquired after marriage and placed in the joint names of husband and wife is presumed to be a provision for the wife--is changed by § 452.330; and (5) whether the trial court ignored the relevant factors listed in § 452.330, subsection 1.

We start with the language of the dissolution of marriage act and particularly § 452.330. That section provides that (1) upon dissolution, the court shall set apart to each spouse his property and divide the marital property in such proportions as the court deems just after considering all relevant factors listed in subsection 1, including the 'conduct of the...