Davis v. Davis, 48967

• Decision Date: 25 June 1985
• Docket Number: No. 48967,48967
• Citation: Davis v. Davis, 693 S.W.2d 879 (Mo. App. 1985)
• Parties: Norman Lee DAVIS, Petitioner-Appellant, v. Alice DAVIS, Respondent.
• Court: Missouri Court of Appeals

Page 879

693 S.W.2d 879

Norman Lee DAVIS, Petitioner-Appellant, v.Alice DAVIS, Respondent.

No. 48967.

Missouri Court of Appeals,

Eastern District,

Division One.

June 25, 1985.

Charles P. Todt, Clayton, for petitioner-appellant.

Merle L. Silverstein, Clayton, for respondent.

KAROHL, Judge.

Petitioner husband appeals from the trial court's order of the division of marital property, the award of limited maintenance, the amount of child support, and the grant of custody of the parties' minor child to respondent wife.

Norman L. Davis and Alice Davis were married on December 30, 1970.Nine months later Norman adopted Margot, Alice's daughter by a previous marriage.On July 25, 1972, Micah Arnold Davis was born of the marriage.Micah died in 1981.Although the parties separated on May 23, 1983 Norman did not move from the family home until December 30, 1983.Margot continued to live with her mother in the family home.Norman saw Margot regularly, "three to four times a week; (for) dinner and casual visits during the weekends and during the week plus telephone calls back and forth several times a day."

At the time of the dissolution hearing Norman was 39, Alice, 40, and Margot, 15 years of age.The home was jointly owned by the parties.It was purchased in 1977 with the proceeds from the sale of the parties' first home.Alice had owned their original house but conveyed one-half of her interest in it to Norman.

Following the separation, Norman "paid all the household expenses ... that is, utilities, mortgage, food, clothing, dry cleaners, exterminators," and other daily expenses.After he moved out of the home, he continued to pay the mortgage, utilities, telephone bills, and some expenses for his daughter.

Norman is employed by the Monsanto Chemical Company of St. Louis with a current gross salary between $60,000 and $64,000 per year.Alice has a B.A. from Washington University and is a certified elementary school teacher.She has also served as President of the University City School Board.Alice works part-time as a bookkeeper in her father's business and earns $500.00 per month.She also receives $200.00 per month in interest and dividends from various investments.Margot receives about $500.00 per month in interest and dividends from investments her parents made on her behalf and from a family trust fund.

Alice testified that she attempted full time employment but felt she had to limit her time away from the home in the interest of Margot.Margot and Alice have had regular psychological counseling since Micah's death.

Although Alice's Income and Expense Statement indicates $2,931.18 in monthly expenses for her and Margot, Alice stated that she"could get by on $2500 a month."Norman's Income and Expense Statement reveals monthly expenses in the amount of $3,199.00 with an average monthly income of $2,414.00.Norman testified that his take-home pay with mandatory deductions would vary between $3,000 and $3,500 a month.

The trial court determined the parties' marriage was irretrievably broken.Alice was granted general care, custody and control of Margot and Norman was granted privileges of visitation and temporary custody.Alice was also awarded: (1) $400.00 per month rehabilitative maintenance for a period of twenty-four months; (2) $500.00 per month child support for Margot; (3) $3,600.00 for attorney and appraiser's fees; (4) the family home which had a net worth of $113,500; and (5) other marital property for an aggregate award $123,000.Norman was awarded marital property valued at $86,000.

Norman claims trial court error in the division of marital property and the awarding of maintenance, child support, and custody of Margot to Alice.Our standard of review in a court tried case requires the affirmance of the judgment unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or erroneously declares or applies the law.Murphy v. Carron, 536 S.W.2d 30, 32(Mo. banc 1976).Further, the trial court's assessment of the credibility of the witnesses is entitled to deference.Fausett v. Fausett, 661 S.W.2d 614, 616(Mo.App.1983).

Appellant first contends that the trial court abused its discretion in its division of marital property.In particular appellant states that the court overvalued his membership in the Westwood Country Club and his ownership in an oil-well exploration partnership.Appellant further contends that the court awarded him an asset, a hot tub, which was sold during the marriage.The result of these errors, appellant contends, is to give respondent a disproportionate share of the marital property.

Appellant testified that his membership in the country club cost "more than Fifteen Thousand Dollars."Respondent said that she believed the cost was $20,000.Appellant testified that he bought a partnership in an oil and exploration fund for $10,000.No other value of the country club membership or the oil investment were given at trial.Appellant filed verified statements as to the current value of these two assets with the motion for new trial.As they were not part of the trial proceedings they need not be considered.SeeHopkins v. Hopkins, 597 S.W.2d 702, 709(Mo.App.1980).The value the court assigned to the country club membership and the oil well partnership was the only evidence before the court.This method of evaluation was not error.Trunko v. Trunko, 642 S.W.2d 673, 676(Mo.App.1982);Beckman v. Beckman, 545 S.W.2d 300, 301(Mo.App.1976).

Appellant testified that he sold the hot tub for $1,650 and used that money to pay the parties' daily expenses, weekly expenses and taxes for that year.The trial court awarded the proceeds of the sale to appellant as part of the division of marital property.The fact that appellant used those funds to meet his obligations to support his family does not make the property distribution unjust.SeeBland v. Bland, 652 S.W.2d 690, 692(Mo.App.1983).The effect of the court order was to recognize what had in fact occurred.

Appellant argues that when the property is valued in the manner adopted by the trial courtrespondent receives more than a fair share of the property.The trial court's division of marital property need not be equal, but only just and equitable.Geldmeier v. Geldmeier, 669 S.W.2d 33, 34(Mo.App.1984).Distribution of marital property will not be disturbed in the absence of a showing of an abuse of discretion.Roberts v. Roberts, 652 S.W.2d 325, 330(Mo.App.1983).We find no error in the trial court's award of the family home to respondent recognizing her economic circumstances and fullfilling the legislative mandate set forth in § 452.330.1(3)RSMoSupp.1984 of awarding the family home, or at least a right to live therein, to the party having custody of the minor child.SeeBrown v. Brown, 664 S.W.2d 268, 269(Mo.App.1984).Nor is there error in the distribution of other assets.The record is devoid of alternative value evidence on the assets awarded to appellant.

Appellant next contends that the trial court erred in awarding respondent rehabilitative maintenance because respondent is able to provide for herself.A court may grant maintenance only if it finds the spouse seeking maintenance lacks sufficient property, including marital property to provide for his reasonable needs and is unable to support himself through appropriate employment or has custody of a child whose condition or circumstances make it appropriate that the custodian not seek employment outside the...