Homfeld v. Homfeld
Decision Date | 21 October 1997 |
Docket Number | No. WD,WD |
Citation | 954 S.W.2d 617 |
Parties | Larry Earnest HOMFELD, Appellant, v. Katherine Elaine HOMFELD, Respondent. 52714. |
Court | Missouri Court of Appeals |
Allen S. Russell, Kansas City, for appellant.
James D. Worthington, Aull, Sherman, Worthington, Giorza & Maycock, Lexington, for respondent.
Before LAURA DENVIR STITH, P.J., and BRECKENRIDGE and HANNA, JJ.
Larry Homfeld (Husband) appeals from the trial court's order dissolving his marriage to Katherine Homfeld (Wife). Husband contends that the trial court erred by considering possible income tax consequences when it divided the marital real property because there was no evidence to support the computation of possible tax liability. Husband also alleges that the trial court erred in setting his monthly child support obligation at $225 per month without adopting one of the parties' Form 14s or filling out its own Form 14. In addition, Husband claims that the trial court erred by purporting to sell the real property before the order was final because this precluded him from posting a supersedeas bond to stay execution of the judgment. Finally, Husband claims that the trial court erred by ordering him to pay half of the guardian ad litem's fees because the second guardian ad litem incurred these fees solely because of Wife's unfounded allegations.
This court finds that sufficient evidence supports the trial court's consideration of Wife's tax liability in awarding her the marital real estate and Husband a judgment for $87,750. This court also finds that trial court did not err in ordering a sale of the marital property before its judgment became final for purposes of appeal, as the right to execute a judgment accrues immediately, and that sufficient evidence supports the trial court's judgment ordering Husband to pay one-half of the fees for the second guardian ad litem. But, because the trial court erred in not making a record of its calculation of the presumed Form 14 child support amount, the award of child support is reversed and the issue remanded to the court for further action. Therefore, the judgment is affirmed in part, and reversed in part and remanded.
Husband and Wife were married on September 22, 1973. They have three children, Darrick Homfeld, born October 26, 1976; Scott Homfeld, born September 17, 1978; and Leah Homfeld, born June 28, 1983. Husband is a self-employed farmer and Wife is an elementary school teacher. The Homfeld family resided in rural Lafayette County on a 196-acre farm purchased from Husband's parents in 1980. After a period of marital discord, Husband and Wife separated.
Husband filed a petition for dissolution of marriage in the Circuit Court of Lafayette County. In his petition, Husband requested custody of the three minor children, child support, division of the marital property, and his reasonable attorney fees. Wife filed a counterclaim for dissolution of marriage, and also requested custody of the children, child support, a division of the marital property, and her reasonable attorney fees.
The trial court appointed a guardian ad litem, Dennis Rolf, to represent the children's interests in the dissolution proceedings. Thereafter, Wife filed a third-party petition against her son, Scott Homfeld, alleging that Husband and Scott had secreted assets and withheld information during the discovery process. In response to Wife's motion, the trial court appointed Kelly Halford to serve as guardian ad litem for Scott. Mr. Rolf continued to serve as guardian ad litem for Darrick and Leah.
The dissolution trial lasted several days. Husband and Wife both testified concerning matters of marital property, child support and the history of their relationship. The trial court interviewed all three children in chambers and heard statements from the two guardians ad litem. After taking the matter under advisement, the trial court entered its decree of dissolution on September 14, 1995, dissolving the parties' marriage but taking all other issues under advisement. On December 12, 1995, Husband filed a motion to set aside the decree of dissolution on the ground that he had not received notice after the trial court entered the decree as required by Rule 74.03. 1 On December 20, 1995, the trial court set aside its decree. The following day, the trial court reentered its decree of dissolution, which was identical to the one entered on September 14, 1995.
On February 26, 1996, the trial court entered a supplemental decree of dissolution of marriage. In this decree, the trial court awarded custody of Darrick and Leah Homfeld to Wife and Scott Homfeld to Husband, and set forth specific visitation schedules for the non-custodial parent. The trial court also ordered Husband to pay Wife child support in the amount of $225 per month. In addition, the trial court assigned a value of $115,550 to farm equipment owned by the parties and ordered it sold with the proceeds split equally between Husband and Wife. The trial court found that the fair market value of the parties' real estate was $225,500 and that each party was entitled to one-half interest in the real estate. Because it found that the real estate could not be divided in kind, the court ordered the real estate sold, and the proceeds split between the parties, after payment of all liens and real estate taxes.
Finally, the trial court ordered each party to pay one-half of Mr. Rolf's guardian ad litem fees for his representation of Darrick and Leah Homfeld. As for Ms. Halford, Scott Homfeld's guardian ad litem, the trial court ordered Wife to pay the entire fee of $8,140, because the court found that the filing of Wife's third-party petition implicating Scott as a third-party respondent necessitated Ms. Halford's appointment.
The court entered a corrected supplemental decree of dissolution of marriage, which did not affect any of the issues here on appeal. Thereafter, Wife filed a motion to amend or correct the judgment. In this motion, Wife contended that the trial court erred by ordering her to pay all of Ms. Halford's fees because her third-party petition was not the sole factor necessitating Ms. Halford's appointment. Wife alleged that Scott's refusal to communicate or work with the original guardian ad litem was the actual reason the trial court appointed a new guardian ad litem to represent him.
On March 28, 1996, the trial court entered its second corrected supplemental decree of dissolution of marriage. In this order, the trial court granted Wife the relief she requested in her motion to amend or correct the judgment. The trial court ordered Husband and Wife to each pay one-half of Ms. Halford's $8,140 guardian ad litem fee. As a result, each party was obligated to Ms. Halford for $4,070.
In the meantime, a public auction to sell the marital real estate and farm equipment was held on March 23, 1996. At this auction, Robert Catron, acting on behalf of the Catron Family Limited Partnership, signed a contract to purchase the real estate. On April 15, 1996, Mr. Catron filed a motion to intervene in the dissolution action because he discovered that Husband had leased the marital real estate to Husband's brother back in February of 1996 without Wife's consent. Mr. Catron alleged that Husband's actions were intended to "chill the sale" or cloud title to the property, and he asked the trial court to issue an injunction requiring Husband's brother to convey his interest in the real estate to the Catron Family Limited Partnership free and clear of the lease.
On April 22, 1996, the trial court appointed a receiver to take possession of the real estate after it learned that the April 11th closing of the sale to Mr. Catron's partnership did not occur. The court ordered the receiver to take all steps necessary to plant the 1996 corn or soybean crop. On the same day, the trial court granted Mr. Catron's motion to intervene in the dissolution action. On April 29, 1996, after being advised that the March 23, 1996 sale of the marital real estate was conducted without publication of notice, the trial court entered a new order concerning the marital real estate. The trial court again found that the real estate had a fair market value of $225,500, but instead of ordering the real estate sold and the sale proceeds divided equally, the court awarded the marital real estate outright to Wife. After noting its consideration of the tax consequences to Wife upon her sale of the property, the trial court granted Husband a judgment against Wife in the amount of $87,750. Husband filed a timely appeal to this court.
On appeal, this court will affirm the dissolution decree unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Woolridge v. Woolridge, 915 S.W.2d 372, 375 (Mo.App.1996). "The party challenging a divorce decree bears the burden of demonstrating error." Id. A judgment should be set aside with caution and only on a firm belief that the judgment is wrong. Fulton v. Adams, 924 S.W.2d 548, 551 (Mo.App.1996). In reviewing the trial court's judgment, this court views the evidence and the inferences therefrom in a light most favorable to the judgment and disregards any and all contrary evidence. Leone v. Leone, 917 S.W.2d 608, 611 (Mo.App.1996).
As his first point on appeal, Husband claims that the trial court erred by giving him a judgment of only $87,750 after it improperly considered possible income tax consequences to Wife if she were to sell the $225,500 marital real estate. Husband contends that there was no evidence to support the amount of the prospective tax liability or that Wife would actually incur any liability.
Tax consequences are a factor to consider in dividing marital assets. Clark v. Clark, 801 S.W.2d 95, 99 (Mo.App.1990). However, the...
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