DeMayo v. DeMayo

• Decision Date: 25 January 2000
• Citation: DeMayo v. DeMayo, 9 S.W.3d 736 (Mo. App. 2000)
• Parties: (Mo.App. W.D. 2000) . Victor Mark DeMayo, Respondent, v. Leila Myrtle DeMayo, Appellant. WD56482 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

9 S.W.3d 736 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Victor Mark DeMayo, Respondent, v. Leila Myrtle DeMayo, Appellant.

WD56482

Missouri Court of Appeals Western District

Handdown Date: 01/25/2000

Appeal From: Circuit Court of Jackson County, Hon. William S. Nixon

Counsel for Appellant: Dennis J. Campbell Owens

Counsel for Respondent: Rebecca Lake Overman

Opinion Summary:

Leila DeMayo appeals the trial court's division of the marital estate following her dissolution of marriage.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

Division Three holds:

(1) The trial court improperly considered Leila's teacher's retirement fund to be marital property, which had a material impact on the division of property. The cause is reversed and remanded for an equitable division of the marital property.

(2) The trial court did not abuse its discretion by finding the marital home to be marital property. Likewise, there is no indication that the trial court did not take the disproportionate contributions of the parties into consideration. When the couple first married, they moved into Leila's home. However, they sold it and applied the proceeds to a new home jointly titled in both names and, later, sold this second home and purchased another home that was also jointly titled. Jointly titling creates a presumption that the home is marital property.

Opinion Author: Joseph M. Ellis, Judge

Opinion Vote: REVERSED AND REMANDED IN PART; AFFIRMED IN PART. Lowenstein, J., and Smith, J., concur.

Opinion:

Leila and Mark DeMayo were married on August 30, 1986. They have two children together, Jessica, 12, and Lauren, 10, and Leila has children from prior marriages. On May 15, 1996, Mark filed his Petition for Dissolution of Marriage and on July 16, 1998, a two-day hearing commenced. A judgment was entered and the marriage was dissolved on September 17, 1998. Leila appeals the judgment of the trial court complaining that the evidence does not support the division of the marital estate.During the marriage, Leila was employed as a teacher by the Blue Springs School District and for the 1998-99 school year, she expected to earn a salary of $42,000 with an additional $6,200 in extra curricular and career ladder pay. In addition, Leila had accrued retirement benefits from teaching that totaled approximately $61,000. Mark moved from job to job during the marriage, working primarily as a sales representative, and earning at the most, $30,000 per year until he was laid off in 1990. Mark started his own business, Mayflower Fiberglass, a fiberglass fabricator, in 1990 which yielded an average of $10,000 per year in income for Mark. Mayflower Fiberglass remained a sole proprietorship throughout the marriage and there was disagreement between the parties regarding whether that money generated from the business was used to provide family support.

At the time of their marriage, the couple resided in Raytown, Missouri, in a home owned by Leila prior to the marriage. Within a year, the parties had purchased Lot N61 at Lake Lotawana using the $19,500 they received from the sale of Leila's home in Raytown for the down payment. Lot N61 was purchased in the joint names of Leila and Mark. In 1993 the parties sold Lot N61 and purchased Lot N7 at Lake Lotawana for $125,000. Neither party testified as to what monies were used to purchase Lot N7 or whether Lot N61 produced a profit when it was sold. Lot N7 was also purchased in the joint names of Leila and Mark DeMayo.

In May 1996, after the dissolution action began, Leila remained in the family home and Mark moved in with his parents. The parties listed the family home with a realtor in February 1997 for $275,000 after Mark and Leila both completed numerous repairs to the house preparing it for sale. In August 1997, the parties received an offer to buy the house for $200,000 and Mark authorized the realtor to make a counter offer for $225,000 but Leila would not approve the counter offer, nor accept the original offer until after the couple appeared in court on the dissolution action. The realtor made no further efforts to market the property in light of Leila's refusal to cooperate.

The petition for dissolution was heard approximately a year later and at that point, the property and home had deteriorated. Mark testified that when he entered the property in December 1997, the carpeting in the living room was torn and the wood floor was showing through, there were holes in the ceiling of the kitchen and the playroom, and the boatlift had been removed from the dock and sold. Many of the home furnishings had been damaged or were missing, and Leila had deferred two mortgage payments and the loan was 30 days in arrears at the time of trial.

In addition to real property, the couple acquired personal property throughout the marriage. Mark testified that in July 1996, Leila loaded the couple's minivan with personal property from the family home and moved it to a concealed location. Leila testified that she had held a garage sale and sold some of the household furnishings without informing Mark of the sale, and she did not share any of the proceeds with him.

In June 1997, Mark lost the lease on his business property and the couple refinanced their home to generate enough money to purchase property to relocate the business. Instead of using the money to purchase property for the business, Leila used the money to purchase cars for her two oldest children who were not children of the marriage. Mark was forced to operate his business from many temporary locations including his father's marina. Mark testified that the lack of a permanent business location resulted in his business being very slow. In addition, two months after Mark filed for divorce, Leila broke into Mark's business and took a camera, a golf putter, $800, and his briefcase which contained his business records, ledgers, checkbook and account records. After being confronted at a deposition, Leila admitted to taking the items listed above and returned some, but not all of those items to Mark.

The trial court ordered the parents to have joint custody of the two girls, giving Leila primary physical custody with extensive temporary custody to Mark. Mark was ordered to pay child support in the amount of $212 per month. The court also awarded Leila her non-marital property which included her retirement account with the Missouri State Teachers Retirement Association valued at $61,000, other personal property valued at $4,200, and a few items of personal property that were not valued by the court. Leila was awarded the following marital property: "1996 Pontiac Grand Am, value unknown; Commerce Bank, $500; Mercantile Bank $10; household goods in her possession; boat lift, $100 [and]...the real estate located at N7, Lake Lotawana, Missouri." Mark was awarded his non-marital property valued at $7,474 in addition to a few pieces of non-marital property that was not valued by the court and the following marital property: "1985 Blazer, $1,500; 1986 Ozark boat and trailer, valued at $4,000; Allan Bank account, $100; business tools and compressor, $3,000; guns, $2,500; couch, TV, bed tables, valued at $950." The court then equalized the judgment by ordering Leila to pay Mark the sum of $26,433. In order to distribute the equity in the real estate, Leila was also ordered to execute a promissory note to Mark in the sum of $67,525 carrying simple interest of 5% per annum and payable on August 1, 2000.

The debts acquired during the marriage were distributed as follows: Leila was ordered to pay the mortgage on the residence in the amount of $115,000 along with the encumbrances on her automobile totaling $11,000. Mark was ordered to pay his medical bills equaling $700 and his I.R.S. tax debt in the amount of $950.

Leila's sole point on appeal claims the trial court erred in distributing the marital property. She argues the court erred in ordering her to pay Mark $26,433 immediately to equalize the judgment, and $67,525 in August of 2000 for his equity in the home. Her arguments are threefold. First, she argues the distribution reflects that the court improperly considered her teacher's pension fund. Secondly, she contends the court failed to consider the disproportionate contributions the parties made to buying and maintaining the marital property. And finally, Leila claims the trial court's order that she pay Mark $67,525 in August of 2000 is unsupported by evidence that she is capable of making such a large payment in the future when circumstances of the future are unknown.

The trial court decision in a dissolution proceeding will be upheld 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Webb v. Fox, 978 S.W.2d 16, 19 (Mo. App. W.D. 1998). Property distribution is left to the discretion of the trial court and we will interfere only if the division is so heavily weighted in favor of one party as to amount to an abuse of discretion. Finnical v. Finnical, 992 S.W.2d 337, 343 (Mo. App. W.D. 1999).

The trial court's division of property in a dissolution action is controlled by section 452.330.1¹ which states in pertinent part:

Disposition of property and debts, factors to be considered.--1. In a proceeding for dissolution of the marriage or legal separation,...the court shall set apart to each spouse such spouse's nonmarital property and shall divide the marital property and marital debts 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 of awarding the family home or the right to live therein for reasonable periods to the spouse...