Howerton v. Howerton, 16256
| Decision Date | 10 October 1990 |
| Docket Number | No. 16256,16256 |
| Citation | 796 S.W.2d 665 |
| Parties | Jane J. HOWERTON, Appellant, v. Webb Allen HOWERTON, Respondent. |
| Court | Missouri Court of Appeals |
Brad D. Eidson, Houston, for appellant.
William E. Gladden, Houston, for respondent.
The parties married on January 10, 1981, and that marriage was dissolved by decree in this case on February 2, 1989. At the time of the marriage, the wife had two children by a prior marriage and owned a home in the State of Washington. Following the marriage, she sold the home for $4,000 and cashed a retirement fund from which she received $2,000. At the time of the marriage, the husband had $20,000 to $24,000 savings and stock in the Texas County Post Company, a family corporation by which he was employed.
The wife at that time was a civil service employee of the federal government in the State of Washington. When the parties moved to Missouri after the marriage, the wife transferred her employment to Ft. Leonard Wood without any break in her employment status.
After the move to Missouri, the spouses pooled their funds to purchase a 32-acre tract on which there was a small house, giving back a purchase money mortgage. They also borrowed additional money from the husband's parents with which to build a new house on the 32-acre tract. Materials for the new house ran to $80,000; each party contributed labor to the building of the new house.
In about 1984 or 1985, the Texas County Post Company was liquidated and the husband received $67,000 to $68,000 as the proceeds of his stock. About that time, the parties entered into a tanning bed business, for which they purchased six tanning beds. Both worked in the business, but the wife spent the more time. The business was successful at first, but it gradually became unprofitable. At the time of the hearing, only one tanning bed was in operation, on a leased basis.
In 1985, the husband's grandmother died. Either by earlier gift from her or by inheritance from her estate, the husband received a one-fourth interest in 160 acres of land and certificates of deposit amounting to $16,081.90.
A son was born to the parties in November 1981. In consequence, the wife took leave from her government job at Ft. Leonard Wood and did not return to that job until April 26, 1986. She then continued in that job until June 1988, when she transferred to Leavenworth, Kansas, for a new civil service job at a comparable salary but with better future pay and prospects of advancement.
The husband introduced considerable evidence to show infidelity on the part of the wife. The evidence shows considerable friction developed between the parties in that connection in the latter phase of the marriage. Although the wife denied any sexual infidelity, the trial court found that both before and after the separation of the parties in March 1988, she was engaged in an extramarital affair.
After extensive evidence, the trial court entered a decree granting custody of the son to the wife, setting apart certain property to be separate and not subject to division, dividing the marital property, and ordering the husband to pay child support and a portion of the wife's attorney's fee. The wife appeals, asserting that: (1) the distribution of marital property to the wife was inadequate; (2) the amount of the child support was inadequate; (3) the valuation of marital property was erroneous; and (4) the amount of attorney fee ordered to be paid by the husband was inadequate. Points I and III are closely related and will be discussed together.
In its decree, the trial court allocated to each party the following items of marital property at the following valuations:
To the Husband
Real Estate (equity) $51,915.81
3 Tanning Beds 6,000.00
1986 Pickup Truck 6,500.00
ATV and 1977 Pickup Truck 1,250.00
Personal Property 4,000.00
IRA 2,000.00
Life Insurance 4,000.00
TOTAL $75,665.81 $ 75,665.81
To the Wife
Loans due from members of the wife's family 11,000.00
IRA 2,000.00
Amount withdrawn from bank 700.00
Amount withdrawn from retirement fund 212.59
Life Insurance Policy 2,000.00
1983 Cutlass 6,500.00
1 Tanning Bed 2,000.00
Personal Property 8,000.00
TOTAL $39,912.59 $ 39,912.59
TOTAL MARITAL PROPERTY $115,578.40
The court set off to the husband as his separate property, not subject to division, the following:
Certificates of Deposit $16,081.90
Real Estate 4,000.00
Adkinson Note (value not found)
The court also found that the wife was entitled to separate property consisting of a television and a mirror, both of which were in possession of the husband, and the husband was ordered to pay her $400.00 for those items. Prior to trial, the husband, pursuant to agreement of the parties, paid $3,000 to the wife toward division of marital property. After trial and as part of the decree, the court ordered the husband to pay the wife an additional $4,500 toward equalization of distribution of marital property.
The wife challenges some of the above valuations and those disputes, as well as others raised by the husband, deserve answer:
1. The real estate. The wife's valuation of the marital real estate before mortgage indebtedness is $110,000, whereas the husband's valuation is $80,000. A professional appraiser placed the valuation at $88,000. The court's valuation of $90,000 represents a fair balance of those figures. The court's valuation of this item cannot reasonably be faulted.
The husband in his brief places a slightly lower valuation on the equity, based on an indebtedness figure of $38,278.62, which is shown on his Statement of Property. However, the court used an indebtedness figure of $38,084.19, to which the husband testified in court. The court's figure in this regard is accepted.
2. The furniture and household goods. Valuation of household goods and furniture is usually subjective and highly variable. Not surprisingly, therefore, the parties place values far apart on these many items. To take an extreme example, the wife values an antique organ in her possession at $500, whereas the husband sets a value of $1,400. As to other items, the description or grouping of items are so dissimilar as to make comparison speculative if not impossible.
The trial court placed values on goods taken by the wife at $8,000 and that which she left for the husband at $4,000. A review of this record does not show those valuations to be unreasonable or an abuse of discretion.
3. The Licking bank account. The wife contends that the trial court incorrectly omitted an alleged Licking bank account in the sum of $1,200 from the list of marital assets in the husband's possession. At one point in his testimony, the husband stated that he had such a savings account at the Peoples Savings Bank in Licking with an amount in the neighborhood of $1,200. On the very next page of the transcript, he denied having any account at Licking. He should be held down by the initial detailed admission.
4. The tanning bed sale proceeds. The wife contends that $5,000, being the proceeds of the sale of two tanning beds in 1987, should be added to the husband's share of marital property. The husband testified he used that $5,000 to pay bills. The trial court cannot be faulted for accepting that uncontradicted testimony.
5. Expenditures by the husband. The wife suggests that the husband has not adequately accounted for $20,000 to $24,000 in savings (held by him at the time of the marriage) and the $60,000 odd (received by him from liquidation of the Texas County Post Company), all of which he says was spent in building the home or on other bills. The husband did so testify. The wife's suspicions to the contrary do not refute that evidence. The trial court's acceptance of the husband's testimony cannot be considered an abuse of discretion.
Adjusting the husband's share of marital property by adding in $1,200 for the Licking bank account, his total comes to $76,865.81, and the total marital property comes to $116,778.40. The husband's share, therefore, amounts to 65.8 per cent of the total, while the wife's share is 34.2 per cent. That percentage division, while heavily favorable to the husband, does not automatically become unfair. Hayes v. Hayes, 792 S.W.2d 428 (Mo.App.1990).
Section 452.330, V.A.M.S. ( Laws 1988), commands that in the division of marital property the court shall consider: (1) the economic circumstances of each spouse; (2) the contribution by each to the marital property; (3) the value of the nonmarital property set off to each; (4) the conduct of the parties; and (5) the custodial arrangements for minor children. The trial court in its decree expressly stated that in dividing the marital property it was giving consideration to factors (1), (2) and (4) listed above. Of those, factor (2) weighs particularly strongly in the husband's favor. Both parties contributed to the property accumulated their personal earnings and work on the...
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