Hubbs v. Hubbs

• Decision Date: 05 January 1994
• Docket Number: 18527,Nos. 18516,s. 18516
• Parties: Homer J. HUBBS, Respondent-Appellant, v. Dortha J. HUBBS, Appellant-Respondent. . Division One
• Court: Missouri Court of Appeals

Page 901

870 S.W.2d 901

Homer J. HUBBS, Respondent-Appellant, v. Dortha J. HUBBS, Appellant-Respondent.

Nos. 18516, 18527.

Missouri Court of Appeals,

Southern District.

Division One.

Jan. 5, 1994.

Motion for Rehearing or Transfer

to Supreme Court Denied

Jan. 27, 1994.

Application to Transfer Denied March 22, 1994.

Harold G. Johnson and Mitchell D. Johnson, St. Ann, for appellant-respondent.

Charles T. Rouse, Salem, for respondent-appellant.

PARRISH, Chief Judge.

This is an appeal from the part of the judgment in a dissolution of marriage case that distributed marital property. Both Dortha J. Hubbs (wife) (No. 18516) and Homer J. Hubbs (husband) (No. 18527) appeal. The appeals were consolidated. This court affirms.

The parties were married March 29, 1962. Both have children from prior marriages. There were no children from this marriage. The trial court entered written findings of fact and conclusions of law. The following findings by the trial court are pertinent to these appeals.

While both parties alleged and testified at trial the other was guilty of misconduct, the court finds that such testimony was not credible and the parties failing to produce independent evidence of such conduct, the court finds no misconduct subject to three exceptions. First, [husband's] assault upon [wife] which was the subject of the jury trial. ¹ Second, [husband] violated [the trial] court's restraining order. ² Third, [wife] concealed marital assets by not fully answering interrogatories posed to her.

. . . . .

The court finds the livestock sold in Springfield for $6,700.00 represents a squandering of marital property for which [husband] must account. The court notes [husband's] testimony wherein he stated he lost interest in cattle after the separation. Accordingly, the [husband] failed to account for the disappearance of some 27 cows and anywhere from 12 to 22 calves between August of 1989 and July of 1990. The court finds the livestock sold at the South Central Regional Stockyards in Vienna for $2,053.00 ..., and finally at the South Central Regional Stockyards in Vienna for $10,039.89 ... represent a concerted effort by [husband] and his children to conceal marital property.

The trial court awarded marital property valued at $282,956.92 to husband and directed him to pay debts of $30,889.19 encumbering the farm and farm equipment he received. ^{3 3} It awarded marital property valued at $415,229.45 to wife. The trial court's judgment further provided:

The court credits to [husband] the sum of $24,260.89 for violation of [its] restraining order. The court credits to [wife] the sum of $22,016.15 for violation of [its] restraining order....

In order to balance the equities, the court orders [wife] to pay to [husband] $80,508.99 less the $20,500.00 jury award ($60,008.99).

The trial court's judgment is reviewable as provided in Rule 73.01.

That review is governed by the constraints imposed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The judgment of the trial court must be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Id. In considering whether the judgment of the trial court is "against the weight of the evidence," this court may exercise its power to set aside the judgment of the trial court only with caution and only if it possesses a firm belief that the judgment is wrong. Id. In undertaking this review, this court is mindful of the opportunity of the trial court to have judged the credibility of the witnesses and gives due regard thereto. Rule 73.01(c)(2).

Chowning v. Magness, 792 S.W.2d 438, 439 (Mo.App.1990).

No. 18516

Wife's first point on appeal is directed to the trial court's order that all of her pension benefits and all of a "thrift and savings plan" she had was marital property. The trial court's findings regarding those assets state:

Contributions to pension plans prior to the marriage are not subject to division. Schinker v. Schinker, 747 S.W.2d 761 (Mo.App.1988). However, [wife] made no effort to establish the amount she accumulated in her pension and savings plan before and after the marriage, therefore, under Hall v. Hall, 804 S.W.2d 411 (Mo.App.1991), and In Re Marriage of Medlock, 749 S.W.2d 437 (Mo.App.1988), the court finds the entire plan marital.

Wife contends the trial court erred in its assessment that she "made no effort to establish the amount she accumulated in her pension and savings plan before and after the marriage." She contends "she was not given notice and opportunity to address these issues" in a second hearing before the trial court; that the trial court led her to believe the issue was resolved at the first hearing in a manner favorable to her "and therefore there was no need for further proof."

On October 10, 1991, the trial court ordered the marriage dissolved and took the property issues in the case under advisement. On February 11, 1992, the trial court entered written findings of fact and conclusions of law and judgment. The findings relative to wife's pension plan and savings plan were that the pension plan at her place of employment provided benefits to her of "an approximate value of One Hundred Eighteen Thousand Two Hundred Fifty Two Dollars ($118,252.00)," and the value of her savings plan at the date the parties separated was "One Hundred Eighty-Seven Thousand Six Hundred Forty-Six [Dollars] ($187,646.00)." The findings stated that this was the product of 29 years of employment while the parties were married and 6 years of employment before wife and husband married. The trial court found, "As a result the percentage of time respondent was married to petitioner and contributing towards the retirement benefits she has accrued is 82.8% which places a value of Ninety Seven Thousand, Nine Hundred Twelve Dollars ($97,912.00) as marital property." The trial court found that the balance of $20,340.00 of the value of the pension plan was not marital property.

The trial court, in its February 11, 1992, findings, applied the same formula to the value of wife's savings plan. It found that 82.8%, or $155,370.89, was marital property and the balance, $32,275.11, was not marital property.

After the initial findings and conclusions and judgment were entered, wife moved to amend the judgment asserting that an asset the trial court attributed to her, a $30,000.00 certificate of deposit, did not exist. She asked the court to delete it from the assets it found to be marital assets.

Husband filed a motion for reconsideration and rehearing contending that certain property should not have been found to be marital property. He also challenged the valuation of certain personal property and requested the trial court to reconsider the finding that part of wife's pension plan and part of her savings plan was nonmarital property. Husband asserted that the evidence supported the determination that all the value of the pension plan and all the value of the savings plan should be classified as marital property.

After hearing oral arguments on the motions, the trial court "set aside the judgment as to the property division and debts." The trial judge advised the parties he would hear evidence to determine if he had "made some kind of a mistake." The verbatim record of the trial was made by magnetic tape recording. The trial judge told the parties he would be listening to the recording to determine if any assets were included as marital property that should not have been.

Additional evidence was heard August 25, 1992, after which the trial court entered new findings of fact and conclusions of law and judgment. Those findings included the determination that the entire value of wife's pension plan and savings plan was marital property.

By her first point, wife challenges the notice she was given regarding the scope of evidence that would be heard at the trial court's second evidentiary hearing. She contends she was not notified that the trial court would consider additional evidence to determine whether all of the pension plan and savings plan was marital property.

In support of her first point, wife relies on Hoppe v. St. Louis Public Service Co., 361 Mo. 402, 235 S.W.2d 347 (banc 1950); Lee v. Baltimore Hotel, 345 Mo. 458, 136 S.W.2d 695 (1939); Dougherty v. Manhattan Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126 (1930); and Champ v. Poelker, 755 S.W.2d 383 (Mo.App.1988). These cases are of no assistance to wife. They involve trial courts granting new trials or otherwise amending judgments without giving notice to the adversely affected parties or permitting them to be heard. Those are not the facts in this case.

In this case, both parties filed motions seeking modifications of the original marital property awards. The issue of whether the entire value of wife's pension plan and savings plan should be included in the marital property valuation was raised in husband's motion. The trial court heard oral arguments on the motions and set the original awards aside. It scheduled a hearing at which it heard additional evidence. Both parties offered evidence at the hearing.

Husband's motion stated, "[Husband] believes and requests that 100% of [wife's] retirement benefits ... be set off as marital property and be divided accordingly or alternatively that [wife] be required to produce evidence as to what was in her plan at the time of marriage." As to the savings plan, the motion alleged, "[T]he Court has erred in setting off any of the Thrift Plan as non-marital property." The motion stated, "[Husband] urges that all of the Thrift Plan be treated as marital in the division of property."

Wife argues that she believed the part of the original judgment regarding the pension plan and the savings plan "had been resolved at the first hearing in [her] favor and therefore there was no need for further proof." That assessment was erroneous....