Henderson v. Henderson, WD

• Decision Date: 05 January 1988
• Docket Number: No. WD,WD
• Citation: 746 S.W.2d 99
• Parties: James C. HENDERSON, Respondent, v. Judith M. HENDERSON, Appellant. 39205.
• Court: Missouri Court of Appeals

Page 99

746 S.W.2d 99

James C. HENDERSON, Respondent, v. Judith M. HENDERSON, Appellant.

No. WD 39205.

Missouri Court of Appeals,

Western District.

Jan. 5, 1988.

Motion for Rehearing and/or Transfer to Supreme Court Denied

March 1, 1988.

Moore and Willy, Professional Corp., Joseph H. Moore, Kansas City, for appellant.

Howard C. Hoyt, Quinn, Peebles, Beaird & Cardarella, Kansas City, for respondent.

Before PRITCHARD, GAITAN and COVINGTON, JJ.

COVINGTON, Judge.

James C. Henderson filed suit for dissolution of his marriage with Judith M. Henderson. The court entered a decree dissolving the marriage, awarding custody of the minor child to wife, and dividing all of the property. Wife contends that the court erred in denying maintenance, in leaving the marital real estate vested in the parties as tenants in common, and in requiring sale of the real estate upon her remarriage or cohabitation. Cause reversed and remanded.

The parties were married in June, 1969, and separated in June of 1986. Wife was seventeen years old at the time of the marriage and thirty-four at the time of the dissolution hearing. Husband is a plumber. He operated his own business until separation from wife, after which he became employed by his father, also a plumber. Prior to the birth of the parties' first and only child in 1984, wife maintained the parties' home and served as a bookkeeper in her husband's plumbing business. She enrolled in nursing school in 1979 and graduated as a registered nurse in June of 1982. She thereafter commenced employment and worked three twelve-hour days per week. Two months before the birth of the child, wife transferred to employment on an "as needed" basis because, she alleged, of the death of her father. Though she stated that she had intended to work full-time, she remained employed part-time at the time of trial. Wife devoted much of her evidence at trial to describing problems in finding baby-sitting services to accommodate her transferring from an as-needed basis to either full-time or different part-time nursing in order to increase her income. She alleged that she wanted to stay home with her child and that the cost of child care in comparison with anticipated income from nursing was economically not advantageous. Husband's uncontroverted testimony was that wife could earn a minimum of $25,000 per year; wife's gross income from part-time employment at the time of trial was $740 per month. Husband's net profit from his business for the 1985 tax year averaged $2,666 per month. Custody of the child was not in dispute.

At the close of all the evidence at trial, the trial court awarded custody of the child to wife with child support of $275 per month. Among orders related to disposition of property, husband was awarded essentially all of the personal property, which was valued at $23,000. Certain provisions were made for the marital residence. The trial court awarded wife $500 per month maintenance through September, 1990. The following day wife filed a motion for reconsideration of property issues. In its decree of dissolution entered approximately four weeks later, the court awarded essentially all of the personal property, other than household goods, to husband and awarded wife $11,500 for division of marital property to be paid in twenty-three payments of $500 each until paid. Intending an equal division of value, and leaving the property in joint ownership, the trial court made orders relating to the real estate. Wife was awarded no maintenance.

Because of the disposition of this appeal, the second assignment of error relating to the marital home is first addressed. Wife alleges error in leaving the marital residence in the joint names of the parties, in not properly allocating expenses upon the sale of the marital real estate, and in requiring that the real estate be sold upon wife's remarriage or cohabitation with a member of the opposite sex.

The decree of dissolution in relevant part provided:

Petitioner and respondent each shall be responsible for one-half of the monthly mortgage payment on said residence, beginning with the payment due for March, 1987. Respondent shall be responsible for normal maintenance on the property. Each party shall bear one-half of the cost of any capital improvements. The marital home shall remain in the possession of respondent until such time as she remarries, cohabitates [sic] with a member of the opposite sex, or until petitioner and respondent jointly agree to sell the property. All proceeds from the sale of the marital home, after deducting the costs of sale, shall be divided equally between the petitioner and respondent.

The trial court's order properly recognized the desirability of awarding the family home or the right to live therein for a reasonable period to the spouse having custody of any children. § 452.330.1(3) RSMo 1986. At trial, husband did not contest wife's living in the family home provided he received what he described as "my part of the equity." Husband did not specify a time at which he should receive his part of the equity nor request any specific conditions related thereto. No evidence of real estate market conditions was adduced by either party.

Unless there is evidence which necessitates a continuation of a tenancy in common, real estate involved in a dissolution proceeding must be divided at the time of dissolution. Buthod v. Buthod, 624 S.W.2d 119, 121 (Mo.App.1981). In re Marriage of Farquhar, 719 S.W.2d 456, 458 (Mo.App.1986). Economic reasons for continuing a tenancy in common previously have been based upon evidence in the record which has reflected a substantial decline in real estate values. See In re Marriage of Farquhar, supra. Even then, our cases have, on occasion, prohibited the continuation of co-ownership...