David v. David, WD

• Decision Date: 21 October 1997
• Docket Number: No. WD,WD
• Parties: Joseph Ray DAVID, Respondent, v. Diane Faye DAVID, Appellant. 53161.
• Court: Missouri Court of Appeals

Page 611

954 S.W.2d 611

Joseph Ray DAVID, Respondent, v. Diane Faye DAVID, Appellant.

No. WD 53161.

Missouri Court of Appeals,

Western District.

Submitted May 21, 1997.

Decided Oct. 21, 1997.

Cynthia A. Suter, Moberly, for appellant.

Gary L. Stamper, Columbia, for respondent.

Before BERREY, P.J., and SPINDEN and SMART, JJ.

SMART, Judge.

Diane David appeals the trial court's order dissolving her marriage to Joseph David. She claims the trial court erred in awarding Joseph, the noncustodial parent, the marital residence. She also contends that the court ignored both parties' desire for an equal property division and failed to take into account the tax consequences of liquidating the retirement funds assigned to her. Although we find that the trial court did not commit error as to the issues briefed, we nevertheless remand the case for reconsideration because of a mathematical error in the trial court's calculation of the assets assigned to appellant.

Joseph and Diane David were married on June 21, 1980. They reside in Moberly, Missouri, and have two daughters, now ages ten and five. Joseph is employed by the Thomas Hill Power Plant, earning approximately $37,000.00 per year. Diane is a teacher at a junior high school in the Moberly School District, earning about $24,000.00 per year. Joseph and Diane separated on April 19, 1995, after an incident during which Joseph hit a glass gun cabinet, breaking the glass. Diane testified that Joseph then took a loaded gun from the cabinet. Joseph admits he broke the cabinet, but denies taking a gun from the cabinet. Diane took the children to Joseph's sister's house. Diane and the children did not return to the marital residence.

Joseph and Diane described their marriage as being happy and tranquil until 1995. Diane attributed their marital problems to a change in Joseph's behavior resulting from an industrial accident he sustained at work in 1993. According to Diane, the accident affected Joseph's temperament. After the separation, Joseph underwent individual counseling, and later joint counseling with Diane.

Joseph filed a petition for dissolution of marriage on May 30, 1995. The case was submitted to the court on June 18, 1996. Joseph and Diane offered into evidence a stipulation regarding custody, visitation, and support, in which they agreed that they would share joint legal custody of the children, with Diane having primary physical custody. The agreement also provided that Joseph would be entitled to reasonable and

liberal visitation, and that Joseph would pay $710.00 each month as child support. The court approved the stipulation and incorporated it into the judgment.

DIVISION OF PROPERTY

The main issue at trial was the division of property. Both parties testified that they wanted an equal division of property; however, both wanted the marital residence. The marital residence is located on approximately 50 acres in Randolph County. Over 40 acres of the land is tillable. Its appraised value was $86,500.00; however, each party testified to willingness for the court to value it at $96,500.00 if the farm were awarded to them. The first mortgage on the farm at the time of trial was $24,300.00. There was also a second indebtedness of $12,374 secured by a lien on the farm. This lien was created after separation, when Joseph and Diane together took out a $25,000.00 line of credit. Diane testified that she thought the line of credit funds would be used to put in a crop, and she did not know that Joseph was going to use the money to buy equipment. She testified that she did not receive any money from the line of credit. The balance on the line of credit at the time of trial was $12,374.00. Additionally, Joseph had borrowed $8,000.00 after the separation to purchase cattle.

Joseph had a pension plan (valued at approximately $28,300.00), and a 401(k) plan (valued at approximately $23,000.00).

At the close of the evidence, the court made oral findings dissolving the marriage and approving the stipulation regarding custody, visitation, and support. The court also said it would value the farm at $96,500.00, and specific items of personal property would be valued at the median difference between the values Joseph and Diane placed on the items. The court did not indicate the party to whom the farm would be awarded. The court directed the attorneys for both parties to submit proposed judgments resolving the remaining issues in the case, including the award of the farm, personal property items, attorney fees, and court costs. The court said it would sign the proposed judgment that was the most reasonable.

Soon thereafter, the court entered its order awarding Joseph the farm, the farm equipment, a truck, the cattle, and all household goods in his possession. The court awarded Diane all of Joseph's pension, accrued as of June 18, 1996, which it valued at $28,309.10, all of Joseph's 401(k), which it valued at $22,875.00, and all of the personal property in her possession. Further, the court ordered Joseph to pay all of the marital debt and to pay $3,500.00 towards Diane's attorney fees. The court awarded Joseph, after subtracting out the marital debt and Diane's attorney's fees, a net of $74,830.00 worth of property, and Diane, with no debt, a total of $59,182.00. Due to a mathematical error, the court showed Diane's assets as $62,781.00. Our calculation shows $59,182.00, using the court's values for the assets. The court declined to enter a judgment against Joseph to equalize the property division, stating that the court was declining to do so in light of Diane's separate $27,130.02 retirement benefit with the Public School Retirement System.

THE MARITAL RESIDENCE

Diane's first point is that the trial court erred in awarding Joseph, the non-custodial parent, the marital residence. She contends that by giving Joseph the marital residence, the court ignored three of the statutory factors listed in § 452.330.1, RSMo 1994 ¹ that it is supposed to consider when dividing property. Section 452.330.1 reads as follows:

1. In a proceeding for dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse his 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 property is to become effective, including the desirability (2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(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.

Diane contends that the trial court failed to give adequate consideration to the desirability of awarding the family home to the custodial parent, Joseph's misconduct during the marriage, and the custodial arrangements for the minor children. She argues that had the trial court considered the fact that Joseph's violent behavior had caused her to leave the farm, the fact that she is the custodial parent, and that the children expressed a desire to return to the farm, the trial court would have most certainly awarded her the marital residence.

The appellate court will affirm the trial court's division of property unless it is so unduly weighted in favor of one party that it constitutes an abuse of discretion. Lenger v. Lenger, 939 S.W.2d 11, 14 (Mo.App.1997). The trial court has "great flexibility and far reaching power" in dividing marital property, and there is no exact formula for weighing the factors listed in § 452.330. Woolridge v. Woolridge, 915 S.W.2d 372, 376 (Mo.App.1996).

Section 452.330 requires the trial court to weigh the desirability of awarding the marital residence to the custodial parent along with the other factors; it does not require that the trial court award the marital residence to the custodial parent. Id. It is apparent from the record that both parties strongly wanted the farm. Joseph said he would like the farm because farming is part of his heritage, and that he needs to farm the property to generate revenue to pay off the loans against the farm. There was evidence that the children were attached emotionally to the farm, maintained a pony there, and had friends in the neighborhood. There was testimony concerning the fight that precipitated the separation, and a subsequent incident between Joseph and Diane's stepfather. There was testimony that Joseph withdrew $2,522.00 from their joint Merrill Lynch account after the separation without Diane's knowledge or consent, and that he applied the proceeds of their federal and state income tax refunds to the mortgages on the marital residence without Diane's knowledge or consent. There was also testimony, however, that Diane withdrew $1,750 from their joint account after separation. We presume that the trial court considered all of this evidence in making its division of property. Monsees v. Monsees, 908 S.W.2d 812, 815 (Mo.App.1995).

We evaluate the decision to award the marital home to Joseph in the light of the evidence, to determine if the award of the home to Joseph constitutes an abuse of discretion. We must defer to the trial court's determination of credibility, and view the evidence and inferences in the light most favorable to the judgment. Kinder v. Kinder, 922 S.W.2d 398, 400 (Mo.App.1996). Although credibility issues may have played some role in this determination, the factual disputes were not major in this case.

The main evidence supporting the award of...