Hopkins v. Hopkins, WD
| Decision Date | 07 April 1980 |
| Docket Number | No. WD,WD |
| Citation | 597 S.W.2d 702 |
| Parties | Elmer R. HOPKINS, Respondent, v. Norma K. HOPKINS, Appellant. 30823. |
| Court | Missouri Court of Appeals |
William C. Partin, Kansas City, for appellant.
A. J. Anderson, Harrisonville, for respondent.
Before TURNAGE, P. J., and SHANGLER and MANFORD, JJ.
The wife appeals from the division of the marital property adjudicated as an incident of dissolution of marriage. The husband and wife agree that the marriage is disrupted beyond repair and do not contest that phase of adjudication. The wife contends that the apportionment of the marital property was unfair because it gave no proper account to the contribution of the wife to that acquisition nor to the misconduct of the husband, and neglected altogether to sever a common ownership in a business enterprise held as a close corporation.
The conjugal life was for eight years, from 1968 to 1976, and after two years of separation, the husband brought suit for dissolution in 1978. At the time of marriage, each was forty-four years of age. The husband had one prior marriage, the wife none. The husband had an adult son (John) from the first union with whom he conducted a farm enterprise. The wife was employed as a computer programmer at $1,000 per month, but discontinued that employment after more than a year of marriage to manage the family farm operation. The husband was a truck driver with gross wages of $15,000; he discontinued that employment shortly after the marriage to work the farm.
The husband and wife each brought separate property into the marriage relationship. The wife with her parents (since deceased) owned two tracts of farm land, 60 acres and 72 acres, and, in her own right, a 2 1/2 acre tract (the Florida plot) and an 80 acre farm. These latter acreages were transferred to the joint ownership of the husband and wife during the marriage. The 80 acres and a separate city lot were sold during the marriage for their joint enterprises. The wife brought, also, some 55 cattle and a bull, plus an increment of calves, an old car and some farm equipment.
The husband brought an improved 202 acre farm, some 47 or 85 cows (as may have been found credible from contested testimony), farm equipment, and an old car.
The wife was prompted to leave her computer employment with A.T. & T. by dissatisfaction with the manner John conducted the farm business. (The husband, apparently, had resumed truck-driver employment and so was often away.) She assumed an increased responsibility and did nearly all the chores. The disaffection with John brought the husband and wife into contention, and in 1970, the father and son dissolved the joint farm operation. In year 1973, the husband and wife commenced a common carrier truck line, later incorporated as E. R. Hopkins Truck Line d/b/a Hopkins, Inc., each with an ownership of one thousand shares. The wife did all the duty as to the books, accounts and checks, and the husband was both driver and operations manager. At dissolution of marriage, the corporation owned three tractors, four trailers, four PSC common carrier certificates and one ICC authority. The net value of these properties, the husband estimated, was $110,000.
The son John, alienated since the 1970 disruption of joint operation with the father, was taken on as a driver for the truck line. There soon was argument between the husband and wife over payment to John, and that conflict led to final domestic disruption. The wife ordered the husband out with a coarse vituperation (which she did not recall), and they separated.
The court adjudged dissolution and a division of the marital property. The decree set apart to the wife as nonmarital property the 60 acre and 72 acre tracts owned with the parents, and to the husband, a described farm tractor. The decree also determined and divided the marital property. The wife brought a motion for new trial or, alternatively, to amend the judgment. The grounds asserted that the division of the property was unjust and otherwise incomplete, and that the wife was kept by mistake of counsel from proof of the marital misconduct of the husband a relevant factor by § 452.330.1(4) in the determination of a just allocation of the marital property. In response, the court set the judgment aside altogether and scheduled a hearing. On that date, the wife requested a continuance to allow the testimony of her special counsel on common carrier matters as an expert on the value of that marital asset. The court refused the continuance and by order confined the evidence on hearing to proof of marital misconduct and of assets not previously disclosed. At the hearing, the wife attempted to prove that the original order for apportionment of the truck line assets was neither reasonable nor functional. The offer of proof was refused once again. The court expressed that the evidence on marital misconduct did not dissuade the earlier proof and reentered the previous judgment with additional apportionment of several assets since disclosed.
The division of the marital assets was adjudged without attribution of value as determined fact, although the testimony as to some showed a marked disparity:
Marital Property to the Wife: Range of Value: Encumbrance
----------------------------- ------------------- --------------------
$1000 in attorneys' fees
All livestock $ 62,700-$ 74,700 $ 6,000
2 1/2 acre Florida lot 5,000
Cadillac 3,300
Personal bank account 500
Farm bank account 200- 300
Hay on farm None attributed
1500 shares in Hopkins Truck $150,000-$175,000 $51,477(Gross rate)
Line (out of 2000 or 3/4 ($75,000-$111,750 $47,000(Payoff rate)
of the total) 3/4 of total)
Riding Lawnmower 900- 1,000
Liquid cattle feed No value attributed
Liquid cattle feeder and
described equipment No value attributed
Fence posts No value attributed
Right to agist cattle for the
prescribed period on leased
land No value attributed
Marital Property to the
Husband: Range of Value: Encumbrance
----------------------------- ------------------- --------------------
202 acre farm $210,000 $33,000
Described farm machinery
and cattle equipment 10,200- 15,450
Chevrolet pickup 4,500
Personal bank account 1,000
500 shares in Hopkins Truck
Line (1/4 of total issue) 25,000- 37,250
Lease of one acre within the
202 acre farm for relay
tower $750 per year for No present value
30 years attributed
Oral lease No value attributed
The value attributed by the testimony to the marital property divided to the wife was within the range $141,600 to $190,550, and to the husband, $217,700 to $245,200. In addition, the net value attributed to the nonmarital property set apart to the wife (the 60 and 72 acre tracts) was within the range $189,300 to $198,000, and to the husband (a described tractor), $6,000 to $7,000.
The first error contends the court misapplied the statutory criterion of § 452.330.1(4) that on dissolution of marriage the adjudication consider the conduct of the parties to the marriage as a relevant factor on the division of the marital property. The formal judgment entry recites that the evidence did not show
that either party expended marital funds or property unreasonably to the deprivation of the other party and such evidence is incompetent to affect the division of marital property which is hereby decreed.
There was evidence that the husband drank too much and cuffed and battered the wife on occasions. The husband denied the evidence. There was evidence that, not only occasionally, the wife abused the husband with common epithets. The wife could not recall such conduct. The wife argues that the vocabulary of judgment does not give her evidence the proper effect, but confines the ground of adjudication to financial misconduct, and so imposes a limitation of proof the statute does not allow.
The conduct of the parties element of proof precedent to the division of the marital property means general conduct, both that which sustains and that which demeans the marriage. The misconduct as does the good conduct relates to the course of an action during the marriage (§ 452.330.1(4)), and is not limited by financial misdeed or any other species of misbehavior. Burtscher v. Burtscher, 563 S.W.2d 526, 527(1-3) (Mo.App.1978); Butcher v. Butcher, 544 S.W.2d 249, 255(6) (Mo.App.1977). The term of judgment the wife finds maladroit, read in full text, confirms that the court understood the statutory standard and followed direction. The argument by the wife assumes, without warrant, that her version of evidence was conclusive on the court. Our review determines, however, whether the division of the marital property rests on substantial evidence and on valid principles of law. Murphy v. Carron, 536 S.W.2d 30, 32(1-3) (Mo. banc 1976). The full record on the conduct element of that ultimate issue (§ 452.330.1(4)) now before us confirms that adjudication of the conduct element precedent to the division of property (§ 452.330.1(4)) rests on substantial evidence and applies proper principles of law.
The second assertion of error contends that the order, which divides to the wife fifteen hundred shares of the Hopkins Truck Line and to the husband five hundred shares, maintains the spouse in joint ownership of that marital asset after dissolution and so violates the principle of Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977). Corder (l.c. 804(9)) and subsequent authority find in § 452.330 a public policy to avoid a sequel of litigation between the spouses by a decree which divides all the marital property and severs "all unity...
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