Handy v. Handy

• Citation: 338 S.W.3d 852
• Decision Date: 12 April 2011
• Docket Number: No. WD 71888.,WD 71888.
• Parties: Chiquita H. HANDY, Respondent,v.Kevin L. HANDY, Appellant.
• Court: Missouri Court of Appeals

338 S.W.3d 852

Chiquita H. HANDY, Respondent,

v.Kevin L. HANDY, Appellant.

No. WD 71888.

Missouri Court of Appeals, Western District.

April 12, 2011.

Chiquita H. Handy, Phoenix, AZ, pro se.M. Corinne Corley, Kansas City, MO, for Appellant.Before Division II: KAREN KING MITCHELL, Presiding Judge, and JOSEPH M. ELLIS and VICTOR C. HOWARD, Judges.KAREN KING MITCHELL, Presiding Judge.

This is a dissolution of marriage case. The issues are whether the trial court abused its discretion in ordering the marital home sold, finding that the marital home was worth $135,000, denying the husband's motion to reopen the evidence on the issue of the home's value, and/or ordering the husband to pay maintenance in the amount of $600 per month. We hold that the trial court abused its discretion in ordering the sale of the marital home. The trial court acted within its discretion in all other respects. Therefore, we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Facts and Procedural Background¹

The trial court dissolved the marriage of Appellant Kevin Handy (“Husband”) and Respondent Chiquita Handy (“Wife”). The parties agreed that their only minor child (“Daughter”) would continue to reside with Husband and that Wife would pay no child support. The only aspects of the dissolution that are relevant to this appeal are the court's treatment of the marital home and the court's maintenance award.

Wife testified that she believed the house to be worth $147,000. She based her opinion on an alleged appraisal which was purportedly done the previous year.² Husband testified that he believed the home to be worth less than $107,000 (the principal balance on the mortgage). Husband testified that he thought that the home had depreciated based on his observations of the housing market. Two months after the evidence had closed (and after the court had announced its judgment to the parties), but before the court had entered judgment, Husband filed a motion to reopen the evidence to submit a current appraisal of the home. Husband alleged that a new appraisal valued the home at $121,000. Husband had testified at trial regarding his plan to refinance the home to reduce his monthly mortgage payments. He argued in his motion to reopen the evidence that the trial court should allow him to refinance the home at $121,000 and pay off certain marital debts with the proceeds of the new loan.

Husband also argued that it was in the best interests of Daughter to continue to reside in the marital home and that Wife could be compensated for her share of the equity in the home via a greater award of other marital property. For example, the marital unit possessed a “Thrift Savings Plan” which the court valued at approximately $79,000. To pay marital debt, the parties had secured a loan with the Thrift Savings Plan, and they still owed $15,568.88 on that loan. Thus, the Thrift Savings Plan had a net value to the marital unit of approximately $63,500.³

The trial court denied the motion to reopen the evidence and ordered Husband to sell the home, pay certain marital debts (totaling $10,927 at the time of the decree), as well as costs of closing and commissions with the proceeds, and split the remaining proceeds, if any, with Wife. The court also found that the home had a fair market value of $135,000 and ordered Husband to place it on the market at that price. Other marital debts were divided between the parties, with Wife being assigned $4,590 in debt and Husband being assigned $7,000 in debt.

The court valued the Thrift Savings Plan at $79,000 and divided the plan assets between the parties with Husband receiving 60 percent ($47,400) and Wife receiving 40 percent ($31,600). Husband was made responsible for repayment of the $15,568.88 loan secured by the plan, which resulted in the parties receiving an approximately equal equitable share of the plan.

Relevant to the issue of maintenance, the trial court found that Wife incurred $1,946 per month in reasonable monthly expenses. The court derived that figure by taking Wife's income and expense statement, which listed monthly expenses of $2,629 per month, and (1) eliminating payments associated with her car (which she had sold); (2) lowering her monthly telephone expenses to $50; and (3) eliminating her expenses for cable television.

At the time of trial, Wife was unemployed, but she testified that, in the past, her employment had included: working at fast-food restaurants, giving care to disabled persons, bartending, and doing laundry. Wife testified that she had difficulty keeping those jobs due to her medical conditions. Wife also testified that she received various forms of governmental aid, totaling approximately $732 per month.

Despite Wife's unemployment, the court imputed $611 of monthly employment income to her. The court derived that figure by concluding that Wife was capable of working 20 hours a week at $7.05 per hour. The court also found that Wife received $739 per month in governmental assistance. The court then added the amount Wife receives in governmental assistance to the amount of employment income the court imputed to her to arrive at its finding that Wife's total imputed income was $1,350 per month.

Subtracting the amount of Wife's total imputed monthly income ($1,350) from the amount of Wife's monthly reasonable needs ($1,946), the court found a deficiency of $596 per month.

Husband testified that, if he were awarded a share of the Thrift Savings Plan and if he refinanced his home, which would reduce his mortgage payment from $1,420 per month to approximately $950 per month, he would be able to pay off the marital consumer debts and meet his and Daughter's needs going forward. However, contrary to this assertion, Husband also testified that, even by limiting his expenses going forward (as suggested above), his expenses would exceed his income. Husband claimed expenses of approximately $3,198.85 ⁴ per month, and take-home income of approximately $2,834.88 per month.

The court found that Husband was capable of paying Wife $600 per month while meeting his own needs. That result was possible, the court found, because the court was ordering Husband to sell the marital home, and therefore Husband would no longer have to pay the mortgage. The court made no other findings regarding Husband's expenses. The court then ordered Husband to pay Wife $600 per month in maintenance.

Husband filed a motion to amend the judgment, arguing, among other things, that the trial court had failed to find that an in-kind division of the marital home was infeasible, and therefore a court-ordered sale of the home was improper. The trial court denied the motion. Husband appeals.

Standard of Review

As in all bench-tried cases, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) governs our standard of review. In re Marriage of Accurso, 234 S.W.3d 556, 557 (Mo.App. W.D.2007). Accordingly, we will affirm the trial court's judgment unless (1) there is no substantial evidence to support it; (2) it is against the weight of the evidence; (3) it misstates the law; or (4) it misapplies the law. Murphy, 536 S.W.2d at 32; Accurso, 234 S.W.3d at 557. However, on the specific issue of whether the court properly divided the parties' marital assets, we will reverse only when the trial court abused its discretion. Accurso, 234 S.W.3d at 557. Likewise, we will not reverse the trial court's maintenance award unless it abused its discretion, Hill v. Hill, 53 S.W.3d 114, 116 (Mo. banc 2001), and the same is true with respect to the trial court's denial of a motion to reopen the evidence. Foster v. Village of Brownington, 76 S.W.3d 281, 287 (Mo.App. W.D.2002).

Legal Analysis

I. Forced Sale of the Marital Home

Husband argues that the trial court abused its discretion in ordering him to sell the marital home in that the court could have awarded Wife the value of her equity interest in the home without ordering a sale. We agree.

“In a proceeding for dissolution of the marriage ... the court ... shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors.” § 452.330.⁵

The trial court has substantial discretion in dividing marital property. Galloway v. Galloway, 122 S.W.3d 705, 707 (Mo.App. E.D.2003). Nevertheless, “a sale [of marital property] should be ordered only as a final alternative when no other possibility can be devised.” Id. (emphasis added). In general, in order for the court to properly order a sale of marital property, it must find that (1) an in-kind division of the property is infeasible; and (2) a forced sale is in the interest of at least one party. Id. There must be an evidentiary basis for these findings. Id.; Parker v. Parker, 744 S.W.2d 469, 471 (Mo.App. W.D.1987). Moreover, when the property sought to be sold is the home of the custodial parent and the minor child, “courts should also consider the judicial reluctance to uproot the custodial parent and unemancipated children residing there.” Chambers v. Chambers, 910 S.W.2d 780, 785 (Mo.App. E.D.1995).

An “in-kind” division occurs when the court awards each party his or her interest in marital property without ordering a cash payment. 24 Am.Jur.2d DIVORCE AND SEPARATION § 532 (2008). To achieve an in-kind division, the court can partition the subject property, with a tract of approximately equal value going to each spouse, see Farmer v. Farmer, 821 S.W.2d 911, 912 (Mo.App. S.D.1992); or it can set aside the marital home to one spouse while awarding the other spouse other marital property of commensurate value. See Galloway, 122 S.W.3d at 707–08. In short, “if it is possible to award one spouse the real estate in its entirety and offset that award by giving the other spouse different marital property of approximately equal value, then the real estate need not be sold.” Galloway, 122 S.W.3d at 707–08.

However, dividing the marital home in...