Elrod v. Elrod

• Citation: 144 S.W.3d 373
• Decision Date: 28 September 2004
• Docket Number: No. 25924.,25924.
• Parties: Thomas A. ELROD, Jr., Respondent, v. Cherie Renee ELROD, Appellant.
• Court: Court of Appeal of Missouri (US)

144 S.W.3d 373

Thomas A. ELROD, Jr., Respondent, v. Cherie Renee ELROD, Appellant.

No. 25924.

Missouri Court of Appeals, Southern District, Division Two.

September 28, 2004.

Appeal from the Circuit Court, Phelps County, Tracy L. Storie, J Thomas M. Benson, Lowther Johnson, Springfield, for Appellant.

Ronald D. White, Williams, Robinson, White, Rigler & Buschjost, P.C., Rolla, for Appellee.

ROBERT S. BARNEY, Judge.

Cherie Renee Elrod ("Wife") appeals the judgment of the Circuit Court of Phelps County dissolving her marriage to Thomas A. Elrod, Jr. ("Husband"). Wife raises three points of trial court error. The first two points center on the division of the parties' marital properties, and the third point premises trial court error in the denial of her request for maintenance. We commence our review with Point II for the sake of clarity.

The record reveals that Husband and Wife were married on December 31, 1989, and last separated on November 16, 2000.¹ Husband filed a petition for dissolution of marriage on December 5, 2000, alleging that the parties' marriage was "irretrievably broken." Subsequent to a hearing on November 7, 2002, the trial court dissolved the parties' marriage, but continued the determination as to the division of property, debts, maintenance and attorney's fees until later hearings, which were held on November 25, 2002; November 27, 2002; and, January 3, 2003.

The record reveals that at the time of the parties' marriage, Wife was employed as a cashier and stocker, and Husband owned a trucking business known as Elrod Truck Service.

In 1991, the parties' separated for a period of about six months, due chiefly to Wife's involvement with a man from St. Louis whose first name was Patrick. Husband filed for dissolution of the marriage, but the parties ultimately reconciled, and Wife returned to the marital home.

Wife, who suffers from osteogenesis imperfecta, a disease which causes the weakening of her bones, broke her hip in 1994 in a work-related accident and, although she "pretty well went back to normal activities," she did not return to working outside of the home.² Wife's hip and bone problems bothered her continuously throughout the parties' marriage.

Dr. Larry Marti, who has treated Wife's bone disease for a number of years, testified that he assisted Wife in applying for and obtaining Social Security Disability benefits; however, Dr. Marti further testified that he did not think there was any reason Wife could not attempt vocational rehabilitation or some sort of sedentary employment. There was also testimony, however, that despite her illness, Wife took long trips by automobile and airplane; went deer hunting and used a rifle; rode her jet ski; went swimming; performed yard work; performed normal housekeeping activities; cared for Husband's child from his previous marriage; danced; drank alcohol; and, engaged in sexual relations with other men.

Wife testified that during their marriage Husband alluded to having extra marital affairs of his own. Husband denied cheating on Wife and denied making any statements about having a girlfriend. Wife also testified regarding several incidents of abusive behavior on Husband's part. Husband admitted that in December of 2000 he kicked Wife following an argument, but denied Wife's other assertions of abuse.

The trial court entered its findings of fact and conclusions of law on July 8, 2003. In making its division of marital property and allocation of marital debts, the trial court awarded each party "over $149,000.00 net equity in marital property."

Husband was awarded $511,060.00 in marital properties and allocated $323,876.00 in marital debts. In an effort to equalize the property division, the trial court ordered Husband to pay Wife a lump sum of $37,304.00, thereby leaving Husband with a net marital equity of $149,880.00. Wife was awarded $191,219.00 in marital properties and was allocated $78,643.00 in marital debts which, combined with the equalizing distribution from Husband, left Wife with a net marital equity of $149,880.00.

In its division, the trial court found that "[w]hile both parties contributed to the acquisition of the marital property, the bulk of property was accumulated principally due to Husband's efforts in the operation, maintenance, expansion, upkeep and management of the sole proprietorship known as `Elrod Truck Service'...." The trial court "also note[d] that Husband, without any contribution or assistance from Wife, reduced debt subsequent to commencement of these proceedings by over $70,000.00." Additionally, the trial court set out that "Wife did not, subsequent to recovering from her hip injury, regularly and materially contribute to the acquisition of marital property, although she was capable of such contribution even if such contribution may have been limited from time-to-time and to some degree by her health condition...."

Further, the trial court observed that "[a]lthough Husband admitted participation in physical altercations with Wife, those altercations all occurred at or near the time of their final separation", "were not as significant as Wife described in her testimony", and, "did not place any additional burdens on the already failed marriage...."

The standard for reviewing a decree of dissolution is the same as in any court-tried action. Bullard v. Bullard, 929 S.W.2d 942, 944 (Mo.App.1996). The decree must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).³ "We do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in a light most favorable to the prevailing party and disregard contradictory evidence." McCallum v. McCallum, 128 S.W.3d 62, 65 (Mo.App.2003). Additionally, we defer to the trial court's determinations of credibility in making our review. In re Marriage of Colley, 984 S.W.2d 163, 166 (Mo.App.1998).

Appellate courts will only interfere with the trial court's division of property if "the division of property is so unduly weighted in favor of one party that it amounts to an abuse of discretion." Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App.2001). "The division of property is presumed to be correct, and the party challenging the division bears the burden of overcoming the presumption." In re Marriage of Pahlow, 39 S.W.3d 87, 91 (Mo.App.2001).

In dissolving a marriage, the trial court awards each spouse his or her non-marital property, then divides the remaining marital property and debts in a reasonable manner after considering all relevant factors enumerated in section 452.330. See Ballard v. Ballard, 77 S.W.3d 112, 116 (Mo.App.2002). The trial court is vested with great flexibility in its division of marital property. Shepard, 47 S.W.3d at 417. There is no set formula concerning the weight given to the factors considered under section 452.330. Kester v. Kester, 108 S.W.3d 213, 224 (Mo.App.2003). The division need not be equal, but must be fair and equitable under the circumstances of the case. Smithson v. Smithson, 986 S.W.2d 939, 940 (Mo.App.1999).

In her second point, Wife asserts that the trial court erred in awarding "a marital debt to Husband for future tax liability in the amount of $78,200.00." Wife maintains that this award was against the weight of the evidence because "Husband's expert testified that the liability would only occur upon liquidation of the trucking company assets" and "the trial court did not order liquidation of the assets nor was there any evidence presented at trial that any such liquidation was likely to occur." We agree.

In Schedule A, which was attached to the trial court's findings, the trial court, under the heading "Unsecured Debt", allocated to Husband the amount of $78,200.00 which it denoted as "[t]axes on asset liquidation."

At trial, the accountant for Husband's trucking company, Robert McKay ("McKay"), testified as an expert on the value of the trucking company's assets. McKay, in addition to preparing Husband's tax returns, was responsible for maintaining a depreciation schedule on the "rolling stock" belonging to the company. The record shows this rolling stock had consistently included a number of large trucks and trailers. McKay testified that "throughout the year [Husband] buys and sells assets" and at the end of the year Husband informs him of his business dealings so that McKay can prepare his taxes. McKay testified that, based on the numbers he had been provided for the rolling stock at the time of trial, "as far as fair market value is concerned, and comparing that to the book value of those assets, [he] determined that the liquidation of those assets at those values would incur a tax liability of $78,200."

In his dealings with Husband, McKay testified that Husband typically takes the maximum deductions allowed by law when he depreciates property. McKay further related that "from an accounting standpoint" it is "fair and reasonable to include and consider the tax burden those assets would have when looking at the overall value of those assets." However, McKay also acknowledged that he was unaware of any plans by Husband to liquidate the business. He noted that if Husband does not liquidate the business, the tax liability of $78,200.00 will not occur in this tax year, but will be borne in the year the individual assets are sold.

It has been long held that "[t]ax consequences are a factor to consider in dividing marital assets." Homfeld v. Homfeld, 954 S.W.2d 617, 621 (Mo.App.1997). However, the trial court is not permitted "to make deductions to the marital estate for estimated tax liabilities absent sufficient evidence to support its findings." Baldwin v. Baldwin, 905 S.W.2d 521, 524 (Mo.App.1995).

Here, there is little evidence supporting the proposition that Husband intends to liquidate all of his trucking company assets...