Klockow v. Klockow, WD
| Decision Date | 13 October 1998 |
| Docket Number | No. WD,WD |
| Citation | 979 S.W.2d 482 |
| Parties | Susan Kay KLOCKOW, Respondent, v. Daniel Edward KLOCKOW, Appellant. 54899. |
| Court | Missouri Court of Appeals |
Carla G. Holste, Jefferson City, for appellant.
Marilyn R. Gaeth, Columbia, for respondent.
Before SMART, P.J., and ELLIS and HOWARD, JJ.
Daniel Edward Klockow ("Husband") appeals the judgment of the trial court dissolving his marriage to Susan Kay Klockow ("Wife"). Husband challenges the division of property, the determination of child support, and the custody arrangements made by the trial court. The judgment is affirmed.
The parties were married on July 30, 1983. Husband owns a geotechnical engineering firm, D.E. Klockow & Associates ("DEKA"). Shortly before the parties were married, they entered into an antenuptial agreement. Portions of that agreement relevant to the issues on appeal are set out in "Appendix A." Daniel Simon, the attorney Husband consulted at the time of the marriage, drew up the antenuptial agreement and a declaration of trust naming Husband as trustee. Mr. Simon wanted Husband to incorporate the business, but Husband chose not to do so. The trust was an attempt by Mr. Simon to duplicate the effects of a corporation, designed to own the real estate of the business and develop an office building on the real estate. The trust would then lease the real estate to Husband, doing business as DEKA. 1 The trust was also designed to receive the accounts receivable accrued before the marriage. The trust would collect the accounts receivable and loan them to the business. Mr. Simon, not comfortable with using this form of business, warned Husband that Husband's personal income would be considered marital income. He explained the importance of not commingling marital property with trust assets. It was not intended that Husband would freely transfer funds from the business to the trust. 2
After the marriage, Husband chose to use the trust account, an interest bearing account, primarily as a savings account for the business. The business account was used to pay the bills from the business. There is no correlation between the monies the trust transferred to the business account and the monies used to make purchases from the business accounts. Moreover, business income was deposited directly into the trust account. Business income was used to make mortgage payments on real estate and to pay for labor and materials associated with the construction of a new office building on the real estate. The value of the trust in 1984 was $162,800.00. By the time of the trial, the value of the trust was $365,210.00, an increase of $202,410.00.
Two children were born of the marriage, Sara, born October 8, 1986, and Jessica, born November 3, 1987. Wife was the primary caretaker of the children, providing for their day-to-day needs. Wife went back to work in 1995 and, at the time of the trial, was working as a secretary at Boone County National Bank earning $7.50 per hour.
In April 1995, shortly after Wife returned to work, Husband began to act in ways that Wife described as "strange." He claimed that someone had broken into his office. He also began to suspect that Wife was involved in adultery. Husband began checking the mileage on the couple's van, the position of the telephone cord and the caller identification box on the telephone. He claimed to have seen suspicious footprints in the yard and fingerprints in the house. He set up two sound-activated listening devices in the house. After the couple separated, Husband began following Wife. He investigated people in her neighborhood. Husband hired a private investigator to do a surveillance on Wife.
Wife denied adultery. She testified that she was afraid of Husband and that he was acting very paranoid. During the couple's separation, Wife and Husband were able to communicate about the children, although such communication was strained. Wife testified that at one point, when the girls visited Husband for five nights over Christmas, they had not bathed or washed their hair during the entire time. Wife did not believe that long periods of time with Husband were beneficial for the children because they "seem to have gotten upset or not been as well taken care of as I think they should have." Wife was not comfortable with Husband's mental stability. At one point Husband asked Wife if she thought he was going crazy.
During the dissolution proceedings, a guardian ad litem was appointed at Husband's request. The guardian ad litem suggested that joint legal custody be awarded, with primary physical custody to Wife. The guardian ad litem found that the girls were bright and articulate. Both girls preferred to live with their Mother and visit their Father.
After hearings on May 13, 1997 and July 16, 1997, the trial court dissolved the marriage. The court found that Wife had a monthly gross income of $1,340.00 and that Husband had a monthly gross income of $9,002.00. Wife was awarded child support in the amount of $1,479.00 per month. Joint legal custody of the children was awarded. Wife was awarded sole physical custody. Husband was given visitation on alternate weekends, each Wednesday after school, three two-week periods during the summer, alternating holidays, spring break, and one-half of Christmas break. The trial court divided the marital and separate property as follows:
WIFE VALUE HUSBAND VALUE
Equity in Home $47,000.00 Bank Account $3,297.00
Bank Account $6,655.00 Bank Account $968.00
Bank Account $2,101.00 Life Insurance $7,487.00
Bank Account $695.00 Motorcycle $900.00
IRA CD's $71,244.00 Outboard Boat $2,000.00
IRA CD's $5,401.00 Outboard Motor $1,500.00
1987 Van $2,400.00 Boat Trailer $1,500.00
Treasury Note $6,045.00 Gun $1,000.00
Cash Payment $37,960.50 Marital Int. DEKA $202,410.00
NOW Account $3,000.00
TOTAL $182,501.50 $221,062.00
-37,960.50 (to wife)
--------------------
$183,101.50
----------
The trial court found that the assets of the trust and the business were both marital and non-marital. It assigned an equity value of $365,210.00 to the assets, with $202,410.00 adjudged to be marital assets and $162,800.00 as non-marital assets. The trial court also divided the debt. Wife was held responsible for the debt on the home ($42,000.00) and Husband for the debt on the business ($113,664.00). Husband appeals.
In Point I, Husband contends that the trial court erred in classifying as marital property: (1) part of the value of the real estate used by Husband's business; (2) an office building constructed on the real estate; and (3) replacement tools and equipment. He claims that the inclusion of this property within the marital estate had a significant impact on the overall distribution of marital property. Wife contends that the assets that Husband claims were his separate property were properly considered marital property because Husband had the burden of showing that the property was separate and he failed to do so. The trial court could, therefore, have found that subsequent income from the business, marital property, was the source of the increase of the value of the trust. Wife also argues that marital assets were used to pay the costs of the construction and mortgage of the office building and that Husband never proved that the tools and equipment in question were replacements for trust assets. Wife further asserts that if the trial court did err in its classification of property, the overall distribution is equitable and such error does not, therefore, constitute reversible error.
Review of this court-tried case is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Thus, the judgment of the trial court will be upheld unless it is against the weight of the evidence, it is not supported by substantial evidence, or it erroneously declares or applies the law. Id. Section 452.330.1, RSMo Supp.1997 directs that "the court shall set apart to each spouse his nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors...." The five factors enumerated in § 452.330 that the court is directed to consider are: (1) the economic circumstances of each spouse; (2) the contribution of each spouse to the procurement of the marital property; (3) the set-off of nonmarital property (4) the parties' conduct during the marriage; and (5) the custodial arrangements for minor children. Marital property, according to § 452.330.2, includes all property acquired by a spouse after the marriage save for certain categories of property, including "[p]roperty excluded by valid written agreement of the parties...."
The trial court is vested with great flexibility in its division of marital property. Woolridge v. Woolridge, 915 S.W.2d 372, 376 (Mo.App.1996). There is no set formula concerning the weight given to the factors considered under § 452.330. Id. The division need not be equal, but must be fair and equitable given the circumstances of the case. Dardick v. Dardick, 670 S.W.2d 865, 869 (Mo. banc 1984). This court will interfere only where the division is so unduly favorable to one party that it constitutes an abuse of discretion. Id. We presume that the trial court's division is correct and the party challenging it bears the burden of overcoming that presumption. Knapp v. Knapp, 874...
To continue reading
Request your trial
-
Kasser v. Kasser, 03-065.
...husband transferred in trust to the parties' children immediately before and during the divorce proceedings. Cf. Klockow v. Klockow, 979 S.W.2d 482, 488 (Mo.Ct.App.1998) (party claiming property is nonmarital bears burden of proving contention by clear and convincing evidence). I also belie......
-
Wright v. Wright
...trial court is vested with great flexibility and discretion in its division of property pursuant to section 452.330. Klockow v. Klockow, 979 S.W.2d 482, 487 (Mo. App. 1998). The division of marital property need not be equal, but must be fair and equitable given the circumstances of the cas......
-
Nelson v. Nelson
...trial court is vested with great flexibility and discretion in its division of property pursuant to section 452.330. Klockow v. Klockow, 979 S.W.2d 482, 487 (Mo. App. 1998). We presume that the trial court's division of property is correct, and the party opposing the division bears the burd......
-
In re Marriage of Maninger
...the burden of showing that a portion of the Stifel Nicolaus account could be traced to specific non-marital assets. Klockow v. Klockow, 979 S.W.2d 482, 488 (Mo.App.1998). Husband claims that $199,000 of the assets in the Stifel Nicolaus trust account was non-marital because he had received ......