In re Marriage of Reese

• Decision Date: 23 February 2005
• Docket Number: No. 25877.,25877.
• Citation: 155 S.W.3d 862
• Parties: In re the MARRIAGE OF Nolen Dale REESE and Dessa Maurine Reese. Nolen Dale Reese, Petitioner-Respondent, v. Dessa Maurine Reese, Respondent-Appellant.
• Court: Missouri Court of Appeals

155 S.W.3d 862

In re the MARRIAGE OF Nolen Dale REESE and Dessa Maurine Reese.

Nolen Dale Reese, Petitioner-Respondent, v. Dessa Maurine Reese, Respondent-Appellant.

No. 25877.

Missouri Court of Appeals, Southern District, Division Two.

February 23, 2005.

Frederick W. Martin, III, West Plains, MO, for Appellant.

David G. Neal, Eminence, MO, for Respondent.

JEFFREY W. BATES, Chief Judge.

Dessa Maurine Reese ("Wife") appeals from a judgment dissolving her marriage to Nolen Dale Reese ("Husband") and presents four points for decision. Wife's first three points challenge the division of marital property. She contends the trial court erred by awarding Husband the following "credits" from the proceeds of the sale of the marital real estate: (1) an amount equal to value of Wife's nonmarital teacher retirement account; (2) an amount equal to Wife's share of the marital debt allocated to her by the judgment; and (3) an amount equal to the mortgage, line-of-credit, insurance and tax payments on the marital real estate paid by Husband from September 1, 2002, until the date the property is sold. In Wife's final point, she contends the trial court erred in ordering Husband to pay retroactive child support for only one year, instead of three. We conclude the trial court erred in dividing the marital property. The court acted within its discretion, however, in awarding Wife retroactive child support for only one year. Therefore, we affirm in part, reverse in part and remand the case with directions.

I. Facts

Husband and Wife were married on August 28, 1974. They separated nearly twenty-six years later on August 9, 2000. They had two children: Joshua Reese ("Son"), who was born on April 3, 1981; and Amanda Reese ("Daughter"), who was born on February 28, 1985. Husband filed a petition for dissolution on October 16, 2000. Wife's cross-petition was filed on November 15, 2000. Each parent sought physical custody of both children and an award of child support from the other, as well as division of the parties' marital property. The case was tried on May 30, 2002. The following is a resume of the trial testimony relevant to the issues on appeal.

Husband was employed at a music store in West Plains, Missouri, where he earned approximately $16,000 per year. He had worked at this job for the last five years and planned to stay with the store indefinitely. Since Husband only had a high-school education and never attended college or received any vocational training, he was at his maximum earning potential. Through Husband's various jobs during the marriage, he had accumulated three individual retirement accounts worth $3,500.

Wife was employed as a teacher at Fairview School in West Plains, Missouri. She had been a teacher for 18 years. In 2001, she earned approximately $37,000. Through Wife's employment as a teacher, she had built up a retirement account valued at $27,860.90. She obtained her teaching degree during the marriage with financial assistance from Husband's parents, who paid for the portion of Wife's tuition, books and transportation expenses not covered by grants and student loans. Husband offered no testimony on the dollar value of his parents' contribution to Wife's education. She testified that Husband's parents contributed $1,500 toward the cost of her education. While she was going to school, however, she worked part time as a babysitter. Wife also worked part time and then full time at the extension office. In addition, Wife assisted Husband's parents with the work on their farm by herding cattle, brush-hogging and operating farm equipment.

About two years after the parties married, they moved into a house in Alton, Missouri, owned by Husband's parents. Husband and Wife lived in this house rent-free for the next 13 years.¹ In March 1989, Husband's parents deeded the house and 20 acres to Husband and Wife at no cost to them. There was no testimony introduced concerning the value of the real estate at that time. From 1989 to 2000, Husband's parents also paid the real-estate taxes on the property six or seven times. As of the date of trial, Husband's expert appraised the value of the house and land at $58,500.

When Husband and Wife became the owners of the property, they borrowed $24,000 for home improvements from Farm Credit Services. This debt had been reduced to approximately $9,000 at the time the parties separated in August 2000. During the 11-year period of time over which the mortgage debt was reduced, Wife contributed substantially more to the household income than Husband.

The Farm Credit Services debt was secured by a mortgage on the property. The monthly mortgage payments were $188.66 per month. Insurance on the property cost an additional $56.74 per month. The real estate also served as security for a line-of-credit the parties had at the Bank of Alton. The parties made only one annual payment on this debt in June of each year. In 2001, they just paid the accrued interest. Husband and Wife each contributed one-half of the amount due. As of May 2002, the parties owed approximately $1,301 on the Bank of Alton debt.

When the parties separated, Wife and Daughter moved out of the marital home and into a rented house in Alton.² Husband moved into his parents' home. The marital home remained vacant until May 2001, when Husband's nephew, Stacey Haney, and his wife moved into the residence. Husband allowed the Haneys to live there rent-free in exchange for maintaining the property. Husband moved in with the Haneys and lived with them until Mr. Haney was called up for military duty. Thereafter, Husband moved back into his parents' home. From the date of separation in August 2000, Husband paid the monthly mortgage and insurance payments on the marital home without any assistance from Wife. By the date of trial, these payments totaled approximately $5,150.

During the marriage, Wife was the person who principally managed the couples' finances, bank account and credit cards. Husband had not used a credit card for 10-15 years prior to the parties' separation. Credit-card debt was incurred to pay for household expenses such as clothing for the children, Christmas gifts, vehicle repairs and maintenance, groceries, and to cover shortfalls in the family checking account. At one point, the parties' credit-card debt totaled $15,400. They reduced that debt somewhat after undergoing credit counseling. In August 2000, their total credit-card debt was about $12,000. After separation, Husband continued making payments to Consumer Credit Counseling which were applied to the parties' joint First USA Bank and Citibank Visa credit-card accounts. Husband paid monthly payments of $198 until November 2001, at which time the payments increased to $209 per month. By the date of trial, these payments totaled approximately $4,200. As of May 2002, the balances due on these two accounts totaled $8,964.³

Although Wife paid nothing toward the debt on these credit cards, she did make approximately $1,500 in payments on two of the parties' other joint credit cards during the period of separation. She also paid all of the expenses of raising the couple's two children during that time. Husband contributed nothing to the support of his children after the parties separated in August 2000.

On August 19, 2002, the trial court filed a memorandum listing its decisions on the principal issues in the case:

1. The son is emancipated.

2. Mother should have custody of the minor child and father should have usual visitation.

3. The house and acreage is worth $58,500.00.

4. The house should be sold. The proceeds should be applied to the mortgage. After the mortgage is satisfied Mr. Reese should receive an amount equal to Mrs. Reese's school teachers' retirement fund. If anything remains after these deductions are made it can be equally divided.

5. The debts should be divided based on the ratio of the earning capacity of each party as shown by the tax return.

6. Mr. Reese should pay child support.

7. Personal property should be divided pursuant to testimony of the parties.

Over a year later, the trial court entered its judgment dissolving the parties' marriage as of August 22, 2003. As required by § 452.330.1, the court set apart to each spouse his or her nonmarital property, which appears to be of nominal value except for Wife's school teacher retirement account.⁴ The judgment acknowledges that this account, worth $27,860.90, is Wife's sole and separate property.

The marital property included tangible personal property, Husband's retirement accounts and the parties' real estate. The trial court divided the personal property as follows: (1) Husband was awarded property worth approximately $11,750, comprised of a vehicle, household goods and three individual retirement accounts; and (2) Wife was awarded property worth approximately $6,000, comprised of a vehicle and household goods. The court valued the real estate at $58,500 and found that it was encumbered by debts of $5,584 and $1,301 owed to Farm Credit Services and the Bank of Alton, respectively. The trial court divided the marital real estate in the following provision of the judgment:

5. The parties may agree as between them for one to purchase the other's interest in the real estate using the value set by the Court as the fair market value for the transaction. Should the parties be unable to make such settlement within thirty days of this judgment, the property shall be sold at public auction. The expense of the sale, commissions, abstracting and title insurance fees, and other usual fees and expenses shall be deducted from the gross proceeds of the sale.

6. Upon the sale of the real estate the remaining mortgage to Farm Credit shall be paid as will [sic] as the line-of-credit to the Bank of Alton and secured by the real estate. The remaining proceeds shall be split between the parties after the following credits are given to [Husband]:

a) $27,860.90 for [Wife's] Teacher's...