Klenke v. Klenke, 52505
| Citation | 742 S.W.2d 621 |
| Decision Date | 29 December 1987 |
| Docket Number | No. 52505,52505 |
| Parties | Dennis KLENKE, Plaintiff-Appellant, v. Judy L. KLENKE, Defendant-Respondent. |
| Court | Court of Appeal of Missouri (US) |
Kyler L. Humphrey, Clayton, for plaintiff-appellant.
Gael Davis Wood, Washington, for defendant-respondent.
Husband appeals from decree dissolving the parties' marriage. He claims error occurred in the failure to designate a retirement/pension fund as marital property, in the division of property and the awards of maintenance and attorney's fees to wife. We affirm the judgment as here modified.
The parties, Dennis Klenke (husband) and Judy Klenke (wife), were married on September 4, 1965. Three children were born of the marriage: Jill, born June 26, 1966; Kelly, born July 17, 1968; and, Jeffrey, born February 24, 1970. The parties separated on August 12, 1985 and husband petitioned for dissolution of the marriage. On July 8, 1986 the trial court entered a decree dissolving the marriage, citing husband's misconduct as the reason therefor, dividing property held by the parties, and awarding custody, $450 per month maintenance, and attorney's fees in the amount of $3,290.60 to wife. By terms of the decree, husband was ordered to pay $38 a week per child for a total of $456 a month child support. Additionally, husband was ordered to pay the post-secondary tuition of each child until graduation or age 21 and the high school tuition of Jeff Klenke. On November 25, 1986, pursuant to husband's motion, the decree was amended reducing the amount of child support for Jill from $38 to $15 per week, and defining the terms of post-secondary education to be provided for Jeff following his high school graduation. The total child support owed by husband was decreased to $394 per month with the notation that each child's support would terminate upon attaining age 21. Husband was also awarded the right to claim each of the three children as his dependents for tax purposes. Husband now appeals from that decree.
Initially, we note that appellate review of this case is governed by Rule 73.01 and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will uphold the trial court's decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.
Husband first contends that the trial court erred in failing to designate wife's retirement/pension plan as marital property and omitting it from the marital distribution. The trial court awarded wife all present and future interest in her retirement program--the court merely omitted to label said funds as marital property.
The fund at issue is a fully vested retirement plan of wife's valued at $9800. The evidence supports a finding that the fund was created during the marriage with the beneficial interest belonging solely to wife. The parties stipulated the fund should be distributed to wife as it in fact was by amended decree. Our reading of the record and husband's brief indicates that the trial court treated such property as marital in its final distribution. Husband requests only a technical and cosmetic amendment to the trial court's findings and decree. Accordingly, pursuant to Rule 84.14, we find and hold that the retirement fund is marital property and award it as such to wife. Since the trial court considered the fund in its distribution of marital property we need not remand for this purpose, or change the award to husband and wife in order to balance the distribution. The order distributing marital property is modified to reflect that wife's retirement fund is marital property and shall go to her in its entirety.
Husband's second point alleges abuse of discretion in awarding wife an excessive percentage of the marital assets. Husband claims that he was, at most, awarded only 22% of the marital assets with wife receiving 78%, and at least, he was awarded 5.5% to wife's 94.5% of the marital assets. He asserts that the primary factor behind this inequitable distribution was the trial court's finding that husband was guilty of marital infidelity. We are not persuaded by husband's contentions.
The decree divided the assets as follows:
Husband Wife
---------------- ----------
PERSONAL PROPERTY: $ 2,620.00 $ 4,650.00
EQUITY IN HOME: 12,000.00 1 19,969.87
PENSION: 9,800.00
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$14,620.00 $34,419.87
These figures reflect that husband received 30% of the marital assets to wife's 70% share. Such an award is not a per se abuse of discretion. See e.g., Cook v. Cook, 706 S.W.2d 606, 607-608 (Mo.App.1986) () Further, a percentage is not controlling or meaningful unless considered together with the nature and extent of property to be divided.
Husband urges us to conclude that the described division of marital assets does not reflect the true picture because husband is required to assume all short term debts of the marriage which total approximately $6,800. His monthly payments on this debt are estimated at $410 per month. Husband conveniently fails to focus on the fact that wife was charged with assuming over $43,000 in marital debt which represents the balance owing on the family residence. Her monthly payments for the mortgage and insurance exceed $540 per month.
Husband claims the primary basis for the trial court's disproportionate distribution of the marital assets and debts was its undue...
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May v. May, s. 57220
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