Davis v. Davis
| Decision Date | 29 November 1976 |
| Docket Number | No. 27628,27628 |
| Citation | 544 S.W.2d 259 |
| Parties | Sidney N. DAVIS, Appellant, v. Wilma J. DAVIS, Respondent. |
| Court | Missouri Court of Appeals |
J. Kirk Pahm, Hensley, Rahm & Rahm, Warrensburg, for appellant.
Robert E. Harris, Warrensburg, for respondent.
Before TURNAGE, P.J., and WELBORN and HIGGINS, Special Judges.
Dissolution of marriage proceeding. Trial court entered decree of dissolution. Husband has appealed from decree insofar as it divides property.
Sidney N. Davis and Wilma J. Davis were married June 23, 1957. On February 19, 1974, Sidney filed petition for dissolution of the marriage, stating that he was 46 years of age and his wife 52 and that they had separated on February 8, 1974. No children were born to the marriage. Wilma filed an answer and cross-petition for dissolution. The cause was tried in August, 1974. Sidney's evidence related the marital problems to Wilma's excessive consumption of alcohol. Wilma's evidence was designed to show indiscretion and infidelity on Sidney's part with other women during the marriage. Because neither party here relies measurably upon the misconduct fator in arriving at the division of the marital property, there is no need to consider the evidence on this score in any detail.
The evidence pertinent to the issues here raised was as follows:
Sidney was president of the Knob Noster Oil Company, Incorporated. The corporation operated a retail gasoline service station in Knob Noster and owned a bulk plant from which deliveries and sales of gasoline, fuel oil and propane gas were made to residents of the area surrounding Knob Noster. Sidney actively ran the oil company operation. He drove the truck making deliveries to farmers, worked in the drive at the service station, did 'anything that is to do around the service station,' and kept the books of the operation.
Sidney and his mother purchased the assets of the corporation in February, 1955, for $84,000. Shortly thereafter, the assets were transferred to the newly formed corporation. Sidney received 150 shares and his mother 50 shares. These were the outstanding shares at the time of the trial. $16,000 of the purchase price was paid to the sellers prior to the marriage of Sidney and Wilma. The final payment of $22,500 was made in 1965 from the proceeds of a loan secured by a deed of trust on farm land owned jointly by Sidney and his mother.
At the time of the trial, Sidney was receiving $6,500 per year for his services as president of the oil company. His earnings were deposited in the Bank of Knob Noster. Household expenses were paid from that account.
Wilma was a school teacher, having been so employed for 34 years. At the time of trial her annual salary was in excess of $11,000 per year and her take home pay $664 per month. She took no active part in the operation of the oil company. She was 'listed' as vice-president and a member of the board of directors of the oil company from 1963 to 1974. She received $55 per month from an affiliated corporation, K.N. Wholesale Oil Company, Inc. Sidney and his mother were the sole stockholders in K.N., Sidney owning 37 1/2 shares and his mother 12 1/2 shares.
A family residence at 205 West Workman in Knob Noster was purchased in 1968. At the trial the house was valued at $35,000, subject to a deed of trust securing an outstanding indebtedness of $16,470.00. The parties also owned a vacant lot adjacent to the house, valued at $700.00. Payments on the house were made by Sidney from his income until the parties' separation.
At the time of the marriage Sidney and his mother owned property on Grant Street in Knob Noster. After the marriage, Mrs. Davis conveyed her interest in the property to Sidney and Wilma. The property was sold for a net return of $13,000.00. Eventually $5,000 of that money was invested in United Utilities debentures in the names of Sidney and Wilma. Sidney also invested $1,000, plus $500 added by him, in 100 shares of the Gas Service Company. The remainder of the proceeds of the Grant Street property was used to improve the West Workman residential property.
According to Sidney, Wilma used her income for her clothes, 'frilly' things, things for the house and investments. At the time of the marriage she had a 1955 Buick which was later sold. She also had $2,264.02 in a checking account which was later transferred to a joint account. When the petition was filed, there was a joint checking account in the parties' names at the Sedalia Bank and Trust Company, with a balance of $4,787.03. Sidney made no deposits in that account. Wilma testified that, during the marriage, from her earnings as a teacher and from the proceeds of property inherited from her father, she had invested $18,000 in investment notes of Sedalia Industrial Loan and Investment Company, purchased 70 shares of Nuveen Bond Fund, valued at $7,000, and shares of Founders Mutual Fund, valued at $5,121.11. She also claimed to have purchased the United Utilities debentures and Gas Service stock, above referred to.
Wilma testified that four years previously she learned her school teaching had at that time earned her retirement benefits, payable at age 65, of $175 per month. She testified that one year earlier she had a mastectomy for a malignancy of one breast and that she feared the problem was recurring in her remaining breast. Her physician testified that an X-ray taken August 19, 1974 showed no evidence to metastasis.
At the time of the marriage, Sidney was a joint owner with his mother of a 399-acre farm. The farm was valued at $199,500, subject to a deed of trust to secure a $16,040 debt. All income from the farm went to the mother. Sidney and his mother were also joint owners of residential property in Knob Noster, valued at $16,250, subject to a deed of trust to secure a $4,625 debt. His mother resided at the property.
The trial court's decree respecting the property was as follows:
It set aside the farm and the mother's residence as the property of Sidney and his mother, with Wilma having no interest in them.
It set aside to Wilma as her sole property the following:
Item Value
1972 Mercury automobile $ 2,600
90-day investment note of Sedalia
Industrial Loan and Investment
Company 10,000
5-year investment note of Sedalia
Loan and Investment Company 8,000
Deposit in checking account, Sedalia
Bank and Trust Company $ 4,787.03
It found the following property 'marital property within the meaning of the statutes' and declared that each of the parties should be owners of a 1/2 interest as tenants in common:
Item Value
Residence, 205 West
Workman $35,000
Less encumbrance 16,470 $18,530
Adjacent vacant lot 700
Household property 2,500
100 shares Gas Service stock 912.52
United Utilities Debentures 5,000
Founders Mutual Fund Shares 5,121.11
70 units Nuveen Tax Exempt Bond
Funds 7,000
16 shares Guaranty Corporation 70
Dividends received by Sidney since
separation 550
3 shared Knob Noster Community
and Development Corporation 54
The court further found that Wilma had a 'marital interest' in the assets of Knob Noster Oil Company to the extent of $40,304.50, which was set apart to her 'as her marital interest in said corporation.'
The decree also relieved Wilma of liability on any obligations with which she had joined her husband, except for the indebtedness on the residence.
On this appeal, Sidney attacks the allowance of a marital interest in the assets of the corporation and claims the over-all division of the property gives Wilma a disproportionate share of the marital property. He also attacks the decree insofar as it makes the parties owners of property as tenants in common.
Appellant's first contention is that the court erred in allowing Wilma a marital interest in the assets of Knob Noster Oil Company, Incorporated. He contends that his interest in that corporation was in the ownership of 3/4 of its outstanding stock which was owned by him at the time of the marriage, and that, therefore, his interest in that corporation was not marital property.
Section 452.330 1., RSMo 1975 Supp., provides, in part:
'In a proceeding for * * * dissolution of the marriage * * * the court shall set apart to each spouse his property and shall divide the marital property * * *.'
Section 452.330 2. provides:
'For purposes of sections 452.300 to 452.415 only, ...
To continue reading
Request your trial
-
Tibbetts v. Tibbetts
...decreed if no further division is considered desirable. See Corder v. Corder, 546 S.W.2d 798 (Mo.Ct.App.1977); Davis v. Davis, 544 S.W.2d 259, 264 (Mo.Ct.App.1976).12 Cf. Cain v. Cain, 536 S.W.2d 866, 871 (Mo.Ct.App.1976); See Baize v. Baize, 460 S.W.2d 255, 256 (Tex.Ct.Civ.App.1970); Kraus......
-
Hoffmann v. Hoffmann
...the status of the stock from being the husband's separate property, it should not be considered marital property. Davis v. Davis, 544 S.W.2d 259, 263 (Mo.App.1976). We have not been provided any authority for the wife's postulation that the increased percentage of ownership of a corporation......
-
Marriage of Goodding, In re
...Corder v. Corder, 546 S.W.2d 798, 804 (Mo.App.1977); In re Marriage of Pine, 625 S.W.2d 942, 946 (Mo.App.1981). But see Davis v. Davis, 544 S.W.2d 259, 264 (Mo.App.1976) where the court said leaving real estate in a tenancy in common should not be "absolutely precluded," but "should be rese......
-
Simmons v. Simmons
...to a dissolution of marriage proceeding is not favored. (Corder v. Corder (Mo.App.1977), 546 S.W.2d 798, 804-05; Davis v. Davis (Mo.App.1976), 544 S.W.2d 259, 264.) The aim of the Marriage Act is to end the discord and animosity which led to the dissolution of the marriage. A tenancy in com......