Hahn v. Hahn, 50623

• Decision Date: 09 June 1987
• Docket Number: No. 50623,50623
• Citation: 732 S.W.2d 545
• Parties: Leroy John HAHN, Petitioner-Respondent, v. Delores Jean HAHN, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 545

732 S.W.2d 545

Leroy John HAHN, Petitioner-Respondent, v. Delores Jean HAHN, Respondent-Appellant.

No. 50623.

Missouri Court of Appeals,

Eastern District,

Southern Division.

June 9, 1987.

Motion for Rehearing and/or Transfer

Denied July 15, 1987.

Kenneth L. Waldron, Waldron and Walter, Jackson, for respondent-appellant.

Richard G. Steele, F. Patrick Davis, Finch, Bradshaw, Strom & Steele, Cape Girardeau, for petitioner-respondent.

CRIST, Judge.

Wife appeals from the property division, and from the denial of maintenance and attorney fees in dissolution of marriage decree. We affirm in part and remand in part.

The parties' ten-year marriage was dissolved on August 1, 1985. Wife appealed and filed her notice of appeal on September 6, 1985. On October 22, 1985, wife filed a voluntary petition in bankruptcy and this appeal was stayed. On May 1, 1986, Tom K. O'Laughlin was appointed trustee in bankruptcy. On June 12, 1986, this court granted trustee's motion to intervene in this appeal. On March 30, 1987, the United States Bankruptcy Court authorized wife to proceed with her appeal in this court.

Appellant filed her brief herein on December 19, 1986. At that time she asserted the trial court failed to assign values to items of marital property; failed to decide whether certain items of property, including husband's pension plan and stock proceeds were marital or nonmarital; and failed to completely divide all of the marital estate. On May 30, 1987, the day on which the bankruptcy court authorized this appeal to proceed, husband filed a motion requesting us to dismiss the appeal and remand the action so the trial court could correct any errors in the property division. On March 31, 1987, wife filed a motion in opposition to husband's motion to dismiss and remand.

We can modify the judgment of the trial court if no further factual adjudication is needed. Rule 84.14; Roark v. Roark, 694 S.W.2d 912, 914 (Mo.App.1985); Steinmeyer v. Steinmeyer, 669 S.W.2d 65, 68 (Mo.App.1984). In deference to wife's demand the case not be remanded, we find no reversible error in the failure to distribute the pension and stocks. Based on the record we modify the judgment to give all interest in the pension and stock to husband. In giving this property to husband we are aware the designation of a pension plan as contingent or subject to divestment does not prevent it from being marital property. Mills v. Mills, 663 S.W.2d 369, 372 (Mo.App.1983). The status of property as marital necessitates only that it be divided fairly and equitably. Steinmeyer, 669 S.W.2d at 68 ; In re Marriage of Garrett, 654 S.W.2d 313, 315 (Mo.App.1983). Where wife failed to present evidence to permit the trial court to reach a less speculative conclusion, and objected to remanding the case it is just for husband to retain that property. Accordingly, wife's point relied on II(B) is denied.

In her point relied on II(A) wife asserts: "The decree contains inaccuracies and ambiguities rendering the property award vague, indefinite and incapable of enforcement." To some extent we agree. At the time of the dissolution the parties had two pieces of jointly titled real estate; a home at 1207 College Street, Cape Girardeau, Missouri, which was partially paid for during the marriage and lived in during the marriage, and a home at 1314 Jefferson Street, Cape Girardeau, Missouri, which husband had inherited from his father during the marriage and in which the parties were living when they separated. In paragraph 8a of its Findings of Fact, Conclusions of Law and Judgment the trial court awarded husband the Jefferson Street house and wife the College Street house. We do not disturb that distribution. In paragraph 8b...