In re the Marriage of Clark
| Decision Date | 05 October 1999 |
| Citation | 3 S.W.3d 402 |
| Parties | (Mo.App. E.D. 1999) . In re the Marriage of Arthur F. Clark and Ann Sethem Clark, Arthur F. Clark, Petitioner/Respondent, and Ann Sethem Clark, Respondent/Appellant Case Number: 75128 Missouri Court of Appeals Eastern District Handdown Date: |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of St. Louis County, Hon. Michael T. Jamison
Counsel for Appellant: Daniel P. Card and Bruce E. Friedman
Counsel for Respondent: Charles P. Todt and Cheryl A. Zopp
Opinion Summary: Wife appeals and husband cross appeals judgment in a marriage dissolution action.
DISMISSED.
Division Two holds: The trial court failed to divide and distribute the husband's employee savings plan. Thus, the trial court did not enter a final judgment, and this court has no jurisdiction.
Opinion Author: PER CURIAM
Opinion Vote: DISMISSED. Crane, P.J., Dowd, Jr.and Sullivan, JJ., concur.
Wife, Ann Clark, appeals and husband, Arthur Clark, cross appeals from the judgment entered in a dissolution action. We dismiss the appeal because the trial court failed to divide and distribute husband's employee savings plan, which the court identified as marital property, and, accordingly, there is no final judgment.
Husband and wife were married on June 13, 1987. The parties separated in June, 1995 and husband filed a petition for dissolution on April 9, 1997. In its findings prefatory to its judgment, the trial court found that husband had two retirement plans as a result of his employment with Allstate, that husband began his employment with Allstate Insurance five years before the parties' marriage, that he was vested in the Allstate Savings and Profit Sharing Plan (Savings Plan) before his marriage, and that the Savings Plan was valued at $22,323.51 at the time of the parties' marriage. It valued husband's interest in the Savings Plan just prior to dissolution at $108,146.64. It further found that husband was vested in the Allstate Retirement Plan (Retirement Plan), and its accrued annual retirement benefit was $24,040.00.
In its Conclusions of Law, the court referred to these findings and concluded that Lynch v. Lynch "applies to this situation." It further concluded "[p]ursuant to Lynch, Wife's portion of Husband'[s] retirement plans shall be calculated as on[e]-half of Husband's monthly benefits when and if received multiplied by the years of the parties' marriage divided by the years of Husband's employment with Allstate."
However, in its Judgment,1 the court ordered the parties' separate property be distributed as set out in Exhibit 1 and that their marital property be divided as set out in Exhibit 2. Exhibit 1 awarded husband 63/192 of the Pension Plan payments as his separate property. In a footnote to that award, the court explained that it reached that number by applying the formula enunciated in Lynch but went on to say that the Lynch formula "is not applicable to the Allstate Savings and Profit Sharing Fund because it is a defined contribution plan." In Exhibit 2 the court awarded husband and wife each their "portion" of the Savings Plan but did not set out by what percentages or fractions the Savings Plan should be divided or give a value for their respective portions. Thus, the judgment never effectively divided the Savings Plan.
On appeal wife asserts that the trial court erred in failing to properly divide the Savings Plan. She argues that the court divided the Savings Plan because it identified it and attempted to divide it, but did not do so properly. Wife contends that the trial court's judgment was final and is thus appealable. She requests us to enter the judgment the trial court should have entered under Rule 84.14. Husband argues that we have no jurisdiction because there was no full disposition of the marital property and thus no final judgment.
Section 452.330 RSMo (1997) provides that the trial Although the judgment mentions the Savings...
To continue reading
Request your trial
-
Michel v. Michel
...Meltzer v. Meltzer, 775 S.W.2d 120, 121 (Mo.banc 1989); Crawford v. Crawford, 31 S.W.3d 451, 453 (Mo.App.2000); In re Marriage of Clark, 3 S.W.3d 402, 404[4] (Mo.App.1999); Spence v. Spence, 922 S.W.2d 442, 443 (Mo.App. 1996). This follows because, as in most judgments, a dissolution decree......
-
AUTUMN RIDGE HOMEOWNERS ASS'N v. OCCHIPINTO
...therefore, does not reside in any prefatory statement of reason or recital but in the mandate of the decree. In re Marriage of Clark, 3 S.W.3d 402, 404 n. 1 (Mo.App.1999) (citations omitted). When there is confusion arising out of the superfluous wording of a judgment, resort may be had to ......
-
Tauk v. Tauk, ED 80788.
...to enter a new judgment covering the entire case, from which either party will then have the right to appeal. See In re Marriage of Clark, 3 S.W.3d 402, 404 (Mo.App. E.D.1999). III. The appeals are dismissed. WILLIAM H. CRANDALL, P.J., and SHERRI B. SULLIVAN, J., concur. 1. If the money in ......
-
In re Marriage of Bell, ED 80118.
...identified as marital property or fails to make a determination that the property is nonmarital or nonexistent. In re Marriage of Clark, 3 S.W.3d 402, 404 (Mo.App. E.D.1999). "When undistributed property is discovered before the time for appeal has run and the issue of undistributed propert......