Dodson v. Dodson, WD
| Decision Date | 09 May 1995 |
| Docket Number | No. WD,WD |
| Citation | 904 S.W.2d 3 |
| Parties | Nancy Jo DODSON, Respondent, v. Charles Keith DODSON, Appellant. 49686. |
| Court | Missouri Court of Appeals |
Roy W. Brown, Bruce B. Brown, Kearney, for appellant.
David D. Lodwick, Excelsior, for respondent.
Before BRECKENRIDGE, P.J., and ELLIS and LAURA DENVIR STITH, JJ.
Respondent-appellant Charles Keith Dodson appeals from a decree of dissolution of marriage from his wife Nancy Jo Dodson, alleging that the trial court erroneously considered solely the evidence that he had engaged in marital misconduct, in the form of extramarital affairs, in deciding how to divide the marital property. Mr. Dodson alleges that the evidence of extramarital affairs was insufficient to support the trial court's decision to award both a mobile home and lot and the family home to his wife Nancy.
The parties were married on May 25, 1967, and separated for the purposes of this dissolution on April 25, 1991. Mrs. Dodson filed a Petition for Dissolution on May 1, 1991, requesting a dissolution of marriage, appropriate distribution of marital property including retirement funds, maintenance and support for herself, and attorney fees and costs. Mr. Dodson answered and filed a Cross-Petition.
In the course of the dissolution proceedings, Mrs. Dodson served Interrogatories on Mr. Dodson. Mr. Dodson refused to answer Interrogatories Nos. 20, 21, 22, and 26, which requested information regarding his extramarital affairs. Instead, he invoked his constitutional right to remain silent, stating:
I refuse to answer for the reason that I desire to take advantage of my constitutional rights under the Fifth Amendment, but not limited thereto, and I invoke all of my constitutional rights under Amendments 1 through 10 of the United States Constitution and the applicable constitutional privileges under the Constitution of the State of Missouri, Article 1, Section 19.
At the trial of the dissolution action on April 2, 1992, Mrs. Dodson presented evidence of Mr. Dodson's involvement in at least seven extramarital affairs. During these affairs he would often move in with the women, leaving Mrs. Dodson to care for their child and house. Mrs. Dodson would receive harassing phone calls from certain of these women, during which the women would tell Mrs. Dodson that Mr. Dodson had spent the night with them, describing what he was wearing as proof. On one occasion, the woman Mr. Dodson was involved with became pregnant and had his child. Another time the entire family went into hiding to flee a scorned women who became upset when Mr. Dodson tried to break off the affair.
Mr. Dodson's final extramarital affair began in November of 1988. Mrs. Dodson presented evidence that Mr. Dodson provided his girlfriend with $8,525.00 to purchase a house that she lived in and that was titled in her name. Evidence was also presented that Mr. Dodson made monthly payments on the house and also spent considerable funds on items such as an air conditioner, furnace, television, etc.
In addition to the above evidence of extramarital affairs, both Mrs. Dodson and the Dodson's daughter testified about numerous episodes of physical and psychological abuse of Mrs. Dodson by Mr. Dodson. They testified that, on one occasion, he repeatedly hit Mrs. Dodson in the face. As Mrs. Dodson described the incident:
[H]e would even stand on my feet to hold me up so that he could hit me better because he would hold me up in an upright position so the could hit me again and knock me down. He picked me up one time and threw me in the air and I landed in the back of the truck. He--he was just crazy. I don't really know what happened to him. He just went berserk.
Another time Mr. Dodson dragged Mrs. Dodson across the floor by her hair, leaving carpet burns all over her body. On yet another occasion Mr. Dodson locked Mrs. Dodson in a dog house.
Finally, Mrs. Dodson and her daughter testified that on two separate occasions, Mr. Dodson put a loaded pistol in Mrs. Dodson's mouth and threatened to kill her. One of these events took place in the presence of the Dodson's daughter.
The trial court ruled that Mr. Dodson could not testify during the trial regarding the alleged extramarital affairs because he had refused to answer the interrogatories directed toward those affairs. The parties do not contest that this ruling was within the court's discretion under the law. See Sparks v. Sparks, 768 S.W.2d 563, 567 (Mo.App.), cert. denied, 493 U.S. 957, 110 S.Ct. 372, 107 L.Ed.2d 358 (1989).
After hearing the above evidence, the trial court rendered its initial decree dissolving the marriage and dividing the marital property. In its decree the trial court further stated its belief that, because Mr. Dodson had refused to answer the interrogatories, the court was "without discretion to grant affirmative relief in favor of Respondent [Mr. Dodson], as to marital property division." The determination that marital property could not be awarded to Mr. Dodson was apparently based on the rule that "[w]here a party takes the Fifth Amendment in a dissolution action and thereby conceals pertinent information, the party is not entitled to affirmative relief when timely objection is made." Dodson v. Dodson, 855 S.W.2d 383, 385 (Mo.App.1993), citing, Sparks, 768 S.W.2d at 565.
Despite this rule, the trial court did determine to award Mr. Dodson those items of personal property which Mrs. Dodson consented to giving him. Mrs. Dodson apparently consented to the award of substantial property to Mr. Dodson, for the court awarded Mr. Dodson three pickups, a Harley Davidson motorcycle, two outboard motors, a trailer, and miscellaneous tools and equipment. No value was assigned to this personal property.
The trial court awarded Mrs. Dodson the family home valued at $75,000 to $90,000 with outstanding debts in the amount of $21,739.33, a mobile home and lot valued at $12,000 producing rental income of $200.00 per month, a one/fourth interest in Mr. Dodson's retirement fund which will pay at least $1,200.00 per month at age 65, and the amount of $5,862.00 (one-half of back rent collected by Mr. Dodson on the mobile home and one-half of the amount spent by Mr. Dodson on a residence lived in by Mr. Dodson's long-time girlfriend). Mrs. Dodson was denied maintenance and attorney's fees.
Mr. Dodson appealed, contending it was error for the trial court to hold as a matter of law that it did not have discretion to award marital property to Mr. Dodson. In Dodson v. Dodson, 855 S.W.2d 383 (Mo.App.1993), another division of this Court held that the trial court had erred in finding that Mr. Dodson's invocation of his right to remain silent precluded the court from awarding Mr. Dodson any property. We found that this is not the type of "affirmative relief" prohibited by the invocation of the right to remain silent. We remanded "for the trial court to exercise its discretion and divide the marital property." Id. at 385. This Court added that, upon remand, the trial court "has great flexibility and far reaching power in dividing marital property", and that, in fashioning its remedy:
[T]he court is entitled to believe that the respondent's answers [to Mrs. Dodson's Interrogatories] would reflect serious and egregious misconduct that is not only immoral, but also illegal. Accordingly, the court is entitled to consider a disproportionate distribution of marital property on the basis of the testimony presented and also on the basis of the questions asked that the respondent refused to answer.
Id. (emphasis added).
On remand, the trial court issued a six page decree. The decree was very similar to the initial decree, but added the following two paragraphs:
The Court finds the Respondent guilty of marital misconduct during the marriage.
The Court finds that Respondent's answers to questions relating to marital misconduct, although refused on the basis they would tend to incriminate him, would reflect serious and egregious misconduct that is not only immoral but also illegal.
The decree then set out the marital property in detail and divided it in the same manner as it had been divided initially. As he had done in the initial decree, the trial court again denied maintenance and attorney's fees to Mrs. Dodson based on its finding that she is capable of supporting herself through appropriate employment.
Mr. Dodson timely filed a Motion for New Trial or Request for Reconsideration. The trial court denied Mr. Dodson's motion and he timely filed this appeal.
In an action for dissolution of marriage, the findings and conclusions of the trial court are to be affirmed "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In addition, when review involves the division of marital property "the trial court is vested with considerable discretion in dividing marital property and an appellate court will interfere only if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion." Dardick v. Dardick, 670 S.W.2d 865, 869 (Mo. banc 1984).
When dividing marital property, the trial court is not required to make "an equal division of property," but must make "a fair and equitable division of the marital property in light of the circumstances attending each individual case." Dardick, 670 S.W.2d at 869. The factors to be considered by the trial court in dividing marital property are set forth in section 452.330.1, RSMo 1986,...
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