Crews v. Crews

• Decision Date: 05 August 1997
• Docket Number: No. WD,WD
• Citation: 949 S.W.2d 659
• Parties: Michael William CREWS, Appellant, v. Deborah Louise CREWS, Respondent. 53067.
• Court: Missouri Court of Appeals

Page 659

949 S.W.2d 659

Michael William CREWS, Appellant, v. Deborah Louise CREWS, Respondent.

No. WD 53067.

Missouri Court of Appeals Western District.

Aug. 5, 1997.

Regina Keelan Bass, Kansas City, for Appellant.

James T. Cook, Kansas City, for Respondent.

Before EDWIN H. SMITH, P.J., and BERREY and ELLIS, JJ.

EDWIN H. SMITH, Presiding Judge.

Michael Crews appeals the judgment of the Circuit Court of Jackson County dissolving his marriage to respondent, Deborah Crews. In its decree, the trial court, inter alia, awarded physical custody of the parties' two sons to appellant and their daughter to respondent and ordered appellant to pay respondent child support of $350 per month, maintenance of $500 per month and partial attorney's fees of $5,000. Further, the court ordered the parties' marital property divided.

Appellant raises four points on appeal. He claims that the trial court erred in that its division of the marital property and awards of maintenance, child support and partial attorney's fees to respondent were against the weight of the evidence and an abuse of discretion.

We affirm.

Facts

The parties were married in November, 1973. They had three children: Christopher, born June 8, 1976; Lindsey, born January 7, 1980; and Ryan, born January 16, 1981. In October, 1994, the parties separated. Appellant filed his petition for dissolution on October 5, 1994, and a first amended petition on October 6, 1994. Respondent filed a pendente lite petition for temporary maintenance, child support, visitation and attorney's fees on July 10, 1995. The court granted respondent's petition on September 29, 1995, which, inter alia, awarded respondent $300 per month for child support and maintenance and temporarily granted custody of Lindsey to respondent and Ryan to appellant.

Appellant's petition for dissolution was heard on December 18 and 19, 1995, and January 2 and 4, 1996, by the Honorable J.D. Williamson, Jr. Both parties submitted statements of marital and non-marital property, statements of income and expense, and Form 14's.

As to the division of property, appellant testified to eligibility for a railroad retirement pension, which he valued at $46,077. The court later granted appellant's motion to amend the judgment and reopen evidence for consideration, wherein appellant's expert witness testified that the value of the pension was actually $24,850. As to his contributions to the marital assets, appellant also testified that he had earned the substantial portion of the parties' income through his employment during the marriage. Respondent was employed briefly during the marriage, and then on a more permanent basis immediately before the parties' separation. Respondent alleged that appellant physically abused her, especially during the early years of their marriage, and was having an extramarital affair before their separation. Appellant, conversely, alleged that respondent was physically and verbally abusive to him.

As to the parties' income and expenses, appellant's statement of income and expense indicated that his gross monthly income was $2,532, or $30,384 per year, with total monthly expenses of $2,754.08. At the hearing, however, respondent introduced tax statements showing his income to have been $35,947 in 1993, and $43,366 in 1994. His year-to-date income for the pay period ending July 31, 1995, was $24,414, or $4,069 per month. He testified that the income he projected on his income and expense statement was significantly lower because of a new, less favorable contract, no cost-of-living increase, less overtime work and the fact the final payments from a seven-year bonus had been made in 1995.

On March 8, 1996, the trial court entered its judgment dissolving the parties' marriage. Inter alia, the court awarded physical custody of the parties' two sons to appellant, and custody of their daughter to respondent, with visitation rights to each parent. The court rejected both appellant's and respondent's Form 14 calculations. It determined that appellant's income was $3,167 per month and respondent's was $867 per month. Based on these incomes, it found the Form 14 presumed correct child support amount (PCCSA) from appellant to respondent to be $483 per month, and $186 per month from respondent to appellant, resulting in a Form 14 "split-custody" PCCSA (SC-PCCSA) of $297 per month from appellant to respondent. However, the trial court rebutted this amount as being "unjust and inappropriate," after considering all relevant factors, and awarded respondent child support of $350 per month to begin on December 18, 1995.

As part of its decree, the trial court also divided the parties' property and debts. ¹ In addition, the court ordered appellant to pay respondent $500 per month in maintenance, to begin on December 18, 1995, and ordered appellant to pay $5,000 of respondent's legal fees.

Appellant filed a petition to reopen the evidence and amend the judgment on April 5, 1996, when he discovered that he had incorrectly estimated the value of his retirement pensions. The trial court sustained appellant's motion for the limited purpose of receiving evidence in connection with the pensions, and a hearing was held on June 28, 1996. The trial court entered its order on July 10, 1996, which adopted its previous order in toto. This appeal follows.

Standard of Review

"Provisions in a divorce decree will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law." Allen v. Allen, 927 S.W.2d 881, 885 (Mo.App.1996), citing Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The burden of demonstrating error is on the party challenging the divorce decree. Allen, 927 S.W.2d at 885. We will disturb the trial court's division of marital property only if it is so " 'heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.' " Dodson v. Dodson, 904 S.W.2d 3, 6 (Mo.App.1995). As to maintenance orders, the trial court is granted broad discretion, and "[t]he evidence is viewed favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion." Allen, 927 S.W.2d at 885. Child support provisions will be upheld unless the trial court abused its discretion or erroneously applied the law. Leone v. Leone, 917 S.W.2d 608, 611 (Mo.App.1996). The trial court's award of support will not be disturbed "unless the evidence is 'palpably insufficient' to support it." Elliott v. Elliott, 920 S.W.2d 570, 575 (Mo.App.1996). We will review the trial court's failure to award attorney's fees to appellant for an abuse of discretion. Leone, 917 S.W.2d at 616. "An abuse of discretion is established only when the award is so 'clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice.' " Id. (citation omitted).

I. Division of Marital Property

In his first point, appellant alleges in three sub-points that the trial court erred in failing to equitably divide the parties' marital property. He contends in sub-points (A) and (B) that the trial court's division of property was against the weight of the evidence because the trial court failed to: (A) consider his contributions to the marital assets; and (B) consider the good and bad conduct of both parties during the marriage. In sub-point (C), he alleges the trial court failed to properly classify and set-off to him certain personal property as his non-marital property, or, in the alternative, to divide the property as marital property. Because sub-points (A) and (B) both deal with the factors the trial court must consider in its division of property under Section 452.330.1, ² we will discuss them together. We will address sub-point (C) separately.

A. Marital Contributions and Conduct of Parties Affecting Property Division

Section 452.330.1 V.A.M.S.1997 governs the division of marital and non-marital property and provides in pertinent part as follows:

1. In a proceeding for dissolution of marriage or legal separation ... the court shall set apart to each spouse such spouse's nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

(1) The economic circumstances of each spouse at the time the division of the property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contributions of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

Of the five factors in § 452.330.1, appellant focuses only on two. In sub-point (A), he focuses on factor (2), claiming that the trial court did not sufficiently consider his contribution to the marital assets. And, in sub-point (B), he focuses on factor (4), claiming that the trial court focused only on his bad conduct and respondent's good conduct during the marriage and failed to consider his testimony as to respondent's bad conduct.

[Section § 452.330.1] gives the trial court great flexibility and far-reaching power to divide the marital property so as to accommodate the needs of the parties upon dissolution and there is no formula respecting the weight to be given the relevant factors which a court may consider.

In re Marriage of Wright, 788 S.W.2d 350, 354 (Mo.App.1990). Section 452.330.1 does not require the division of property to be equal. Instead, the court is only required to make a "fair and equitable" division of property. Dodson, 904 S.W.2d at...