Goldberg v. Goldberg, 48135

• Decision Date: 29 March 1985
• Docket Number: No. 48135,48135
• Citation: 691 S.W.2d 317
• Parties: In re the Marriage of Jane E. GOLDBERG, Respondent, v. Milton H. GOLDBERG, Appellant.
• Court: Missouri Court of Appeals

Page 317

691 S.W.2d 317

In re the Marriage of Jane E. GOLDBERG, Respondent, v. Milton H. GOLDBERG, Appellant.

No. 48135.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 29, 1985.

Theodore S. Schecter, Frances Luehrman, Clayton, for appellant.

Carroll J. Donohue, St. Louis, for respondent.

PER CURIAM.

The trial court dissolved the 22 year marriage of the parties, made a determination of the status of the property of the parties, set apart their separate property, and divided the marital property. Neither party was awarded maintenance. The court granted joint custody of the two minor children of the marriage, ordered the husband to pay all expenses of schooling, camps, hospitalizations and prescribed medical and dental treatment for the children. The court made no award for support of the children. Husband's appeal with respect to the division of marital property is the subject of this opinion. Wife has also appealed attacking the award of joint custody. The latter appeal was heard separately and the opinion is to be handed down simultaneously with this opinion. 691 S.W.2d 312.

The trial court referred this case to the Hon. Franklin Ferriss as a special master. The master took evidence at various times over a period of three months and made extensive findings of fact and conclusions of law. Neither party has filed a transcript. The findings of fact of the trial court are accepted as the facts on appeal.

Husband, conceding the facts as found by the trial court, contends that the court misapplied the law and abused its discretion in the division of marital property as more fully set out hereafter. We modify and affirm as modified.

The parties were possessed of $3,289,896 in marital property. Separate property set aside to husband had a value of $6786. Wife's separate property was valued at $663,676.

The trial court awarded wife marital property that had a value of $2,846,817, consisting of cash, securities, household furnishings, personal property and the marital home. The court valued the equity in the home at $235,000. Husband was awarded marital property having a value of $443,079.

The parties were married in 1961. Except for the very beginning of their marriage, sex between them was extraordinarily infrequent and ceased after the birth of the second son in 1976. Wife was a willing partner but unsatisfactory to husband who admitted to having two affairs, the first within the first four or five years of the marriage, the second in 1970 to 1972. Husband then promised to be faithful and wife accepted the promise and husband remained faithful until they separated after wife filed this action.

Although some professional counseling was obtained its full potential was not realized because of insufficient interest or determination on the part of both husband and wife.

Wife's family owned all of the stock of Worth's Inc., a chain of retail stores. Husband went to work for the company in 1971 in a very responsible position. During the time he worked there the company doubled in size. He was a workaholic, spending extremely long hours on company business. This contributed to wife's strong feelings that he was neglecting the family.

Wife held 600 shares of Worth's Inc. which were given to her by her mother during the period of 1958-1970. All of the stock of the company was sold to another organization through the efforts of wife's father, A.J. Goldfarb in April of 1979. At that time husband had a contract of employment that provided for a salary of $179,000 per year. After the sale he continued work for the company as executive vice president under the employment contract which was to expire in January of 1984. The new management advised husband that his income would be reduced significantly upon termination of the contract. Wife worked part time for Worth's Inc. from 1962 to July 1980 for which she received a maximum of $12,000 per year.

Wife received $1,980,000 for her stock in Worth's. She turned these funds over to her father to invest for her as he saw fit. Mr. Goldfarb invested the principal and reinvested the income from those investments in cash accounts and securities. As of December 31, 1982, this fund had a value of $2,355,876 consisting of securities and two cash accounts, an increment of $375,876. Wife had spent a relatively small amount of the income from these funds to pay some of the taxes and to purchase some of her clothing.

Before the marriage wife's father gave her 1500 shares of A. Goldfarb Inc., after the marriage he gave her an additional 6900 shares of stock in this closely held corporation. She also received gifts of public corporate stocks and of insurance policies on the life of her father. The trial court found these gifts to be wife's separate property which had a value of $663,676. No question is raised upon appeal as to the status or value of wife's separate property.

We will make reference to other facts as the issues are discussed.

An orderly disposition of this case requires that we first consider wife's argument that $2,355,876 in securities and cash accounts awarded to her as marital property was in fact her separate property.

Income from separate property during the marriage has been held to be marital property. Norman v. Norman, 604 S.W.2d 680, 683 (Mo.App.1980). When the proceeds of separate property are commingled with the proceeds of marital property all such property becomes marital property. Jeager v. Jeager, 547 S.W.2d 207, 211 (Mo.App.1977). By investing and reinvesting the proceeds from the sale of the Worth's Inc. stock and the income from those investments, the funds were commingled and all of the securities became marital property. Jeager v. Jeager, supra.

Husband contends that the trial court failed to give him proper credit for his contributions to the marital home; failed to give proper consideration to the separate property of wife and gave too much weight to the court's finding of misconduct on the part of husband.

The trial court is required by § 452.330 RSMo 1978 to divide the marital property as the court deems just considering all relevant factors including:

(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(2) The value of the property set apart to each spouse;

(3) 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 having custody of any children; and

(4) The conduct of the parties during the marriage.

In considering the first factor there is no doubt that wife made by far the greatest direct contribution to the marital property by way of the proceeds of the sale of the Worth's stock.

The trial court found that husband's "very responsible duties" as an officer of Worth's made a sizeable but indirect contribution to the value of Worth's stock, but that this contribution was not subject to being quantified. Husband who made a substantial income paid all of the household expenses during the marriage. Wife made no contribution to these expenses and could thus use her income with the assistance of her father to increase the value of the marital property that originated with wife.

Husband had inherited $45,790 from his mother in August of 1973 which he commingled with his earnings and income from the inherited funds. As a result this property and its increment are marital property. As of December 31, 1982 this marital property was worth $200,161.

The court concluded that wife's contribution as prime homemaker was not such "as to require this $200,161 marital asset to be divided between" the parties. Neither was husband's "contribution as prime supporter of the family such as to require the $2,355,876 marital asset...