In re Marriage of Ross

• Decision Date: 10 September 2007
• Docket Number: No. 28140.,28140.
• Citation: 231 S.W.3d 877
• Parties: In re the MARRIAGE OF James F. ROSS and Jana Kay Ross. James F. Ross, Petitioner-Appellant, and Jana Kay Ross, Respondent-Respondent.
• Court: Missouri Court of Appeals

231 S.W.3d 877

In re the MARRIAGE OF James F. ROSS and Jana Kay Ross James F. Ross, Petitioner-Appellant, and Jana Kay Ross, Respondent-Respondent.

No. 28140.

Missouri Court of Appeals, Southern District. Division Two.

September 10, 2007.

Amanda D. Cochran, Blanton, Rice, Sidwell, Nickell, Cozear & Collins, L.C., Sikeston, MO, for Appellant.

Susan Warren, Portageville, MO, for Respondent.

GARY W. LYNCH, Chief Judge.

James F. Ross ("Husband") appeals from the judgment of the trial court dissolving his marriage to Jana Kay Ross ("Wife"). The court divided the parties' marital property and allocated their debts, awarded Wife $1,200.00 per month in non-modifiable maintenance, and ordered Husband to pay her $600.00 per month in child support. Husband argues on appeal that the trial court erred in: (1) making an unequal division of the marital property; (2) awarding maintenance without sufficient supporting evidence of Wife's monthly expenses and reasonable needs; and (3) ordering him to pay child support without first finding and articulating for the record the presumed child support amount in accordance with Form 14. We affirm the trial court's division of marital property, and reverse and remand the awards of maintenance and child support.

(1) Factual and Procedural Background

Husband and Wife were married on September 6, 1985, in Matthews, New Madrid County, Missouri. Two children were born of the marriage. At the time of the dissolution proceeding, one child was a minor and the other was emancipated. Throughout the entire twenty years of marriage, Wife, who had only an eighth grade education, was not employed outside the home. She cared for the children and the marital home full-time while Husband attended college for three years and worked as a lab technician at Associated Electric for the last ten years before the separation. Husband and Wife separated in September of 2005. Eight days later, Husband filed a petition for dissolution of marriage. Wife filed an answer to Husband's petition in which she agreed the marriage was irretrievably broken. Wife also filed a counter-petition for dissolution of marriage requesting sole custody of the minor child, as well as maintenance and child support. In its Judgment and Decree of Dissolution of Marriage, the trial court dissolved the marriage, divided the marital property and allocated the debts between the parties, awarded joint legal custody of the minor child to the parties with sole physical custody going to Wife, ordered Husband to pay to Wife $1,200.00 per month in non-modifiable maintenance, and ordered Husband to pay $600.00 per month in child support for the minor child.

Husband appeals the trial court's division of property, arguing the trial court abused its discretion in making an unequal and inequitable distribution. Husband also appeals the maintenance award, arguing the trial court abused its discretion in awarding maintenance because Wife did not present any evidence of her monthly expenses and reasonable needs and, thus, did not meet the threshold requirement for an award of maintenance. Finally, Husband appeals the award of child support, arguing the trial court erred in awarding child support without first finding and articulating for the record the presumed child support amount in accordance with Form 14.

1) Division of Marital Property

For ease of analysis we first address Husband's Point III, in which he attacks the trial court's unequal division of the parties' marital property.¹ Husband argues it was an abuse of discretion for the trial court to divide the property unequally with seventy percent awarded to Wife and thirty percent awarded to Husband. He claims that the application of the factors from section 452.330.1 in this case "does not justify a departure from an equal division, shared enterprise approach."² We disagree.

The division of property in a dissolution proceeding is governed by section 452.330. "This statute requires a trial court to follow a two-step procedure: (1) the court must first set aside to each spouse his or her nonmarital property; and (2) then divide the marital property and debts in such proportions as the court deems just." In re Marriage of Reese, 155 S.W.3d 862, 869-70 (Mo.App.2005). The factors the court must consider in dividing the marital property include:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

Section 452.330.1.

The trial court has broad discretion in dividing property, and it will be reversed on appeal only if it violates the Murphy v. Carron standard or is so one-sided that it constitutes an abuse of discretion. In re Marriage of Woodson, 92 S.W.3d 780, 785 (Mo. banc 2003). Under the Murphy v. Carron standard, the appellate court must affirm the decision 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "An abuse of discretion occurs only if the decree is so arbitrary or unreasonable that it indicates indifference and lack of proper judicial consideration." Woodson, 92 S.W.3d at 785.

(a) Real Property

The record reveals that the parties' marital property included two pieces of real estate in Matthews, Missouri: (1) the marital home and the lot on which it was located; and (2) a neighboring lot containing a trailer home. When the parties separated in September of 2005, Husband moved out of the marital home and discontinued paying any of its associated expenses. Wife and the minor child remained in the marital home but Wife, who has only an eighth-grade education and has never worked outside the home, did not have a job so she could not pay those expenses. Eventually, before the trial, the house was foreclosed and sold. In its judgment the trial court ordered Husband to pay any remaining deficiency on the home mortgage following the foreclosure. Neither party offered any evidence of the amount of this deficiency.

Wife moved into the neighboring trailer home, and was residing there at the time of the dissolution proceeding. The minor child was residing with another family. The court awarded the trailer home and the lot on which it was located to Wife. While neither party presented evidence of the property's present value, Husband testified that they purchased the property for $20,000.00 in 1998. Wife testified they still owed $6,142.27 on the property. Those figures support an approximate net value of $13,857.73. The court ordered Husband to pay the delinquent payments on the loan at the time of the judgment, which totaled around $430.00. The judgment ordered Wife to hold Husband harmless of any further liability on this indebtedness following the date of the judgment.

(b) Automobiles

The parties owned three automobiles: a 1994 GMC truck; a 1999 Pontiac Grand Am; and a 1997 Aurora. The court awarded the '94 truck, which is Husband's primary vehicle and is valued at $2,500.00, to Husband. The '99 Pontiac, which is the primary vehicle for the parties' emancipated child, co-owned by Husband and the child and valued at $4,500.00, was awarded to Wife. A balance of $3,900.00 remains on the loan for the Pontiac, the payments on which are made by the parties' emancipated child. The 1997 Aurora, which is Wife's primary vehicle and is valued at $8,000.00, was awarded to Wife. Husband was ordered to pay the $4,400.00 balance on the loan secured by the Aurora, the payments on which are automatically deducted from Husband's paycheck.

(c) Husband's Pension and Retirement Accounts

Husband has a 401k and a retirement account through his employer, Associated Electric. The court awarded half of the value of these accounts to Wife and half to Husband. The retirement account value for normal retirement is $27,475.84. The net value of the 401k account is $28,589.73. Accordingly, each party was awarded approximately $28,032.79.

(d) Personal Property (Marital)

Each party was awarded the personal property in their possession. The only evidence regarding such property is Husband's testimony and that contained in Husband's statement of property submitted to the trial court. Husband testified that he had "a T.V.[,] a rocker/recliner, a bed, T.V., [and] washer and dryer[,]" all acquired after separation, in the home he was then currently renting. Husband also testified he left behind "all of the household goods and furnishings which had been accumulated during [the] marriage" when he left the marital home at the time of separation. In his property statement Husband identified the marital "Household Goods" as a TV valued at $300.00, a refrigerator valued at $400.00, furniture valued at $300.00, washer and dryer valued at $900.00, beds valued at $1,000.00, and a mower valued at $3,200.00. The statement fails, however, to indicate who had possession of any of these listed items at the time of the trial. Viewed in the light most favorable to the judgment, based upon Husband's testimony, the TV, washer and dryer, and beds were in Husband's possession and, therefore, set aside to him. The remaining items were in Wife's possession and, therefore, set aside to her.

(e) Other Outstanding Debts

Husband was ordered to pay any outstanding utility bills associated with the marital home and trailer. Wife testified this included an Atmos energy bill of $409.72 and an electric bill for $300.00. Husband was also ordered to pay all checks that had been turned over to...