In Re: The Marriage of Yvonne Marie Thomas

• Citation: 21 S.W.3d 168
• Parties: (Mo.App. S.D. 2000) In Re: The Marriage of Yvonne Marie Thomas and Danny Kay Thomas. Yvonne Marie Thomas, Petitioner/Respondent/Appellant, v. Danny Kay Thomas, Respondent/Appellant/Respondent. 22787 & 22810 0
• Decision Date: 30 June 2000
• Court: Court of Appeal of Missouri (US)

21 S.W.3d 168 (Mo.App. S.D. 2000) In Re: The Marriage of Yvonne Marie Thomas and Danny Kay Thomas. Yvonne Marie Thomas, Petitioner/Respondent/Appellant,
v.
Danny Kay Thomas, Respondent/Appellant/Respondent. 22787 & 22810 Missouri Court of Appeals Southern District 06/30/2000

Appeal From: Circuit Court of Jasper County, Hon. George C. Baldridge

Counsel for Appellant: W. Henry Johnson

Counsel for Respondent: Scott G. Taylor

Opinion Summary: None

Crow, P.J., and Parrish, J., concurs.

Kenneth W. Shrum, Judge

This is a dissolution of marriage case in which both parties challenge the portion of the judgment that divides marital property.

Wife in her appeal (No. 22810) claims the trial court committed reversible error by failing to consider Husband's "substantial marital misconduct" and erred in its treatment of Husband's disability pension and certain cattle sale proceeds.

In No. 22787, Husband charges the trial court with reversible error for failing to (a) consider a certain debt in dividing property, (b) "offset" to Husband the value of nonmarital funds used to acquire marital property, and (c) divide real estate "in a logical manner."

We affirm.

FACTS

The parties were married October 17, 1969. They separated May 12, 1997. One child born of the marriage is emancipated. Wife, born August 14, 1952, received a LPN degree in 1979, an associate degree in nursing in 1988, a bachelors degree in nursing in 1993, and a masters degree in nursing in 1996. Her post-marriage employment began in 1978 when she briefly worked as a waitress and cook at a school. After 1979, Wife worked full time for various medical care providers. At the time of trial, Wife was working full time for Freeman Hospital and weekends at a pharmacy.

Husband, born November 1, 1950, has a high school education. For the most part, he was employed as a union ironworker until December 1986. At that time, Husband sustained an on-the-job injury. As a result of this and earlier injuries, the Social Security Administration (SSA) adjudged Husband disabled within the meaning of its standards. Husband's SSA disability check started approximately December 1989. Also, the Iron Workers' union approved a monthly benefit for Husband. At time of trial, Husband's SSA check was $1059 per month and his union benefit amount was $521 per month.

At trial, Wife sought to have Husband's monthly $521.50 benefit classified as a retirement benefit, hence as marital property. Wife introduced exhibit 6, captioned "Pension Plan Assumptions," and exhibit 7, entitled "Valuation of Pension Plan Assuming Six Percent (6%) Discount Rate." By these exhibits and her testimony, Wife claimed Husband's pension was ninety-two percent marital, and that the marital portion thereof had a present value of $83,222. Husband's lawyer objected to such testimony and exhibits, claiming this represented disability payments, and thus were not marital property. Likewise, Husband testified his union benefits were granted as result of his disability and could not be considered retirement benefits.

Despite being adjudged disabled in 1986, Husband carried on a cattle farming operation thereafter. This was accomplished by doing farm business in Wife's name and listing her as the farm "proprietor" on income tax returns filed after 1987. This practice continued after separation. The proceeds from cattle sold in the post-separation period exceeded $63,000. Although the post-separation sales were made in Wife's name, she received none of the money. An issue at trial and now on appeal is whether Husband squandered or secreted all or part of the 1997-98 cattle sale money. Husband presented an exhibit comprised of numerous checks to support his testimony that the money was used to pay bills related to the farm. Contrarily, Wife pointed to checks which supported her claim that Husband used some of the money for his personal living expenses and to pay credit cards that Husband had previously agreed to pay. Moreover, Wife established that the 1997 cattle sale proceeds exceeded those of other years by over $25,000 after the separation. Husband's explanation stated "we kept 40-some head of heifers over from the year before, and we sold them in 1997."

On the first day of trial¹, Husband testified that in October 1993, he and Wife borrowed $30,330 from Rick Harber for the purpose of buying cattle. The borrowed money was deposited in Husband's and Wife's joint account and used to buy "a set of 35 two-year-old heifers." Husband testified that he and Wife borrowed another $50,000 from Harber on December 16, 1993. According to Husband, these funds were also used to buy cattle. At trial, Husband claimed they still owed approximately $75,000 on those loans. Even so, Husband did not list the Harber loans on a DR Form 1 filed before trial.² It was after the trial started when Husband amended the DR Form 1 to include these alleged obligations. Wife, on the other hand, never mentioned the Harber debts on her part of the DR Form 1. She conceded her signature was on the Harber notes, but testified she thought there had been only one note; that the December 16, 1993, note was "basically a compilation of the October note together with additional money."

Additional facts are given when required for discussion of the parties' claims of trial court error.

THE DECREE

Near the end of its judgment, the trial court summarized its division of marital assets and allocation of indebtedness as follows:

[Wife] [Husband]

Real Estate $173,000 $ 90,500Other Property 42,104 53,385

$215,104 $144,085³

Less: Indebtedness 64,758 97,580

$150,346 $ 46,505

Cattle to [Husband] $107,400

1997 Income tax refunds

to [Wife] 2,007

Payment for [Husband] to

[Wife] to equalize distribution 776 (776)$153,129 $153,129

This summary did not include or otherwise take into account additional rulings by the Court about which the parties complain on appeal. Specifically, the following excerpt from the judgment concerns matters which are not part of the above summary.

"The Court finds that [Wife] has a retirement benefit at McCune-Brooks Hospital in Carthage, Missouri that the agreed value is $8,250.49. Court awards said retirement benefit to [Wife]. Court finds that [Husband] has a pension benefit from the Iron Workers Mid-South Pension Fund which [Wife] presented testimony of value of $83,222. There was testimony that the present benefit is a disability benefit arising from a physical injury to [Husband]. Court awards said disability benefit to [Husband]. Court also finds that [Wife] has obtained an Associates Degree in Nursing in 1988, and a B.S.N degree in 1993 . . . and a Masters degree in nursing . . . in . . . 1996. There was no testimony as to the value of [Wife's] degree obtained during marriage. Because the value of [Wife's] education acquired during marriage depends upon her use of the same, because the value of [Husband's] disability benefit depends upon his remaining disabled, and because [Wife] claims that [Husband received $55,056 from sale of cattle without accounting therefore during separation of the parties, the Court makes no award for division of these matters, but considers they are offset between the parties." (Emphasis supplied.)

Also, the trial...