Cosby v. Cosby, ED 91561.
| Decision Date | 23 June 2009 |
| Docket Number | No. ED 91561.,ED 91561. |
| Citation | 291 S.W.3d 795 |
| Parties | John D. COSBY, Jr., Appellant, v. Barbara N. COSBY, Respondent. |
| Court | Missouri Court of Appeals |
Gary E. Brotherton, Columbia, MO, for appellant.
Kimberly D. Tyler, Bonne Terre, MO, for respondent.
The husband, John Cosby, Jr., appeals the judgment entered by the Circuit Court of Washington County dividing the parties' property and awarding attorney's fees to the wife, Barbara Cosby, following the parties' dissolution of marriage. We conclude that the trial court erred in determining an increase in value of the husband's mobile home and awarding a marital interest therein to the wife. We also conclude that the trial court erred in determining that the husband gave the Ford truck to the wife as a gift and awarding the truck to the wife as her separate property. Therefore, we render such judgment as the court ought to give, and affirm the trial court's judgment as modified.
This dissolution proceeding is before us for the second time. We liberally borrow the factual and procedural background from Cosby v. Cosby, 202 S.W.3d 717 (Mo. App. E.D.2006), without further citation. The parties married in March 2003 and separated the following October. They had one child born in 1985. The husband filed for dissolution shortly after separation, and the wife filed a cross-petition. After numerous discovery issues, the trial court struck the husband's pleadings, and proceeded on the wife's cross-petition as if the husband were in default. The trial court entered its judgment in January 2005 dissolving the parties' marriage and dividing the parties' property. The husband appealed. This Court affirmed the dissolution of marriage, but reversed and remanded the case for trial on all other issues.
The trial court heard the case on remand in December 2007 and entered its judgment dividing the parties' property. The trial court determined the following property was marital and awarded it to the husband.
Pontoon boat, motor, and trailer $ 3,500.00
Jet ski and trailer $ 900.00
Equity in Dodge truck $ 500.00
Increase in value of the husband's 401(k)
plan $ 28,634.78
Improvements to the husband's mobile
home $ 12,000.00
Profit from sale of livestock unspecified
Potential recovery on legal malpractice
claim unspecified
Personal property in the husband's possession
and not set aside to the wife unspecified
The marital property with a specified value awarded to the husband totaled $45,534.78. Therefore, the court ordered the husband to make a marital-equalization payment of $22,767.39 to the wife, which equals half the value of the marital property awarded the husband. The trial court also awarded the wife personal property in her possession not set aside to the husband. In addition, the wife received as her separate property her entire pension, a 1998 Ford truck valued between $3,000 and $4,000, and certain items of personal property with sentimental value. The trial court also awarded the wife attorney's fees. The husband appeals.
In seven points, the husband challenges the trial court's 1) alleged consideration of real property owned by the husband's son, 2) fifty-fifty division of marital property, 3) determination of increased value of the husband's mobile home and assignment of a marital interest therein, 4) award of the Ford truck to the wife as a gift, 5) failure to award an interest in the wife's pension to the husband, 6) award of $3,500 in legal fees to the wife, and 7) award of $4,000 in appellate legal fees to the wife.
We will affirm the provisions in a dissolution decree unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court incorrectly declares or applies the law. Woodard v. Woodard, 201 S.W.3d 557, 560-61 (Mo.App. E.D.2006).
In his first point, the husband claims the trial court erroneously considered any increase in value of the real estate owned by the husband's adult son as the husband's separate property and used it to increase the wife's marital award. But the trial court found that the husband had no ownership interest in the real estate, and concluded that no marital interest existed therein. And we find no evidence that the trial court considered the real estate in order to increase the wife's share of the marital-property division. We deny point one.
In his second point, the husband claims the trial court abused its discretion in awarding the wife fifty percent of the marital assets. Property division should reflect the concept that marriage is a shared enterprise similar to a partnership. Id. at 561. The court found that the wife contributed "sweat equity" to enhancement of the mobile home and the real property on which it is located, believing that the husband owned the real estate and that her money and effort was an investment for the parties' retirement. We find no abuse of discretion in the trial court's fifty-fifty division of the marital property. We deny point two.
In point three, the husband claims the trial court abused its discretion when it determined that the wife's contribution to maintaining and improving the mobile home had increased its value by at least $12,000. Marital effort, labor, or services entitle a party to a proportionate share of the increase in value of the other party's separate property only when the proponent establishes 1) a contribution of substantial services; 2) a direct correlation between those services and the increase in value; 3) the amount of the increase in value; 4) performance of the services during the marriage; and 5) the value of the services and the lack of compensation or inadequate compensation. Moore v. Moore, 189 S.W.3d 627, 634 (Mo.App. W.D. 2006); Klaus v. Klaus, 918 S.W.2d 407, 409 (Mo.App. E.D.1996). Without proof of the value of the services rendered and the connection between their performance and increased value of the property, we will not recognize services as substantial marital effort sufficient to create a marital interest in property. Moore, 189 S.W.3d at 634.
Here, the trial court found that the wife contributed "sweat equity" to both the real property and the mobile home. The court concluded that the mobile home was the husband's separate property, but that the improvements, additions and repairs made to it were marital. The court then determined that the various repairs and improvements increased the mobile home's value by at least $12,000. We find no evidence in the record that the mobile home increased in value during the marriage, much less any evidence that the mobile home increased in value by $12,000 or that the wife's labor increased the mobile home's value by that amount. Consequently, it was error to include a $12,000 increase in the mobile home's value in the husband's marital-property award. Likewise, it was error to use that amount in calculating the marital-equalization...
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