Cosby v. Cosby, No. ED 91561.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtLawrence E. Mooney
Citation291 S.W.3d 795
PartiesJohn D. COSBY, Jr., Appellant, v. Barbara N. COSBY, Respondent.
Decision Date23 June 2009
Docket NumberNo. ED 91561.
291 S.W.3d 795
John D. COSBY, Jr., Appellant,
v.
Barbara N. COSBY, Respondent.
No. ED 91561.
Missouri Court of Appeals, Eastern District, Division Two.
June 23, 2009.
Motion for Rehearing and/or Transfer to Supreme Court Denied August 18, 2009.
Application for Transfer Denied October 6, 2009.

[291 S.W.3d 797]

Gary E. Brotherton, Columbia, MO, for appellant.

Kimberly D. Tyler, Bonne Terre, MO, for respondent.

LAWRENCE E. MOONEY, Judge.


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

291 S.W.3d 798

also awarded the wife attorney's fees. The husband appeals.

Discussion

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...

To continue reading

Request your trial
4 practice notes
  • Lollar v. Lollar, No. SC 97984
    • United States
    • United States State Supreme Court of Missouri
    • 1 Septiembre 2020
    ..., 477 S.W.3d 29, 39 (Mo. App. 2015). The parties bear the burden to present evidence of the value of marital property. Cosby v. Cosby , 291 S.W.3d 795, 799 (Mo. App. 2009). A circuit court may rely on a party's estimate of an asset's value, but the court is not required to find the value in......
  • Potts v. Potts, No. WD 70196.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Febrero 2010
    ...or ability to pay such fees." Id. "One spouse's superior ability to pay will suffice to support an attorney's-fee award." Cosby v. Cosby, 291 S.W.3d 795, 800 (Mo.App. 2009). "In addition, the trial court may consider a spouse's conduct during the marriage in making its determination." The d......
  • K.O. Real Estate, LLC. v. O'Toole, No. ED 91989.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Junio 2009
    ...counterclaim alleging three counts of intentional interference with three separate contracts or "business expectancy." Defendant did not 291 S.W.3d 795 request an accounting of the rent due or make any attempts or efforts toward payment of the past-rent due under Section 535.160.5 The subst......
  • Wood v. Wood, No. ED 96218.
    • United States
    • Court of Appeal of Missouri (US)
    • 29 Noviembre 2011
    ...of an attorney's services, and we will reverse the trial court's ruling only where there is a clear abuse of discretion. Cosby v. Cosby, 291 S.W.3d 795, 799–800 (Mo.App. E.D.2009). One spouse's superior ability to pay will suffice to support an award of attorney's fees. Id. at 800. At the c......
4 cases
  • Lollar v. Lollar, No. SC 97984
    • United States
    • United States State Supreme Court of Missouri
    • 1 Septiembre 2020
    ..., 477 S.W.3d 29, 39 (Mo. App. 2015). The parties bear the burden to present evidence of the value of marital property. Cosby v. Cosby , 291 S.W.3d 795, 799 (Mo. App. 2009). A circuit court may rely on a party's estimate of an asset's value, but the court is not required to find the value in......
  • Potts v. Potts, No. WD 70196.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Febrero 2010
    ...or ability to pay such fees." Id. "One spouse's superior ability to pay will suffice to support an attorney's-fee award." Cosby v. Cosby, 291 S.W.3d 795, 800 (Mo.App. 2009). "In addition, the trial court may consider a spouse's conduct during the marriage in making its determination." The d......
  • K.O. Real Estate, LLC. v. O'Toole, No. ED 91989.
    • United States
    • Court of Appeal of Missouri (US)
    • 23 Junio 2009
    ...counterclaim alleging three counts of intentional interference with three separate contracts or "business expectancy." Defendant did not 291 S.W.3d 795 request an accounting of the rent due or make any attempts or efforts toward payment of the past-rent due under Section 535.160.5 The subst......
  • Wood v. Wood, No. ED 96218.
    • United States
    • Court of Appeal of Missouri (US)
    • 29 Noviembre 2011
    ...of an attorney's services, and we will reverse the trial court's ruling only where there is a clear abuse of discretion. Cosby v. Cosby, 291 S.W.3d 795, 799–800 (Mo.App. E.D.2009). One spouse's superior ability to pay will suffice to support an award of attorney's fees. Id. at 800. At the c......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT