Linton v. Linton, 25176.

• Decision Date: 17 October 2003
• Docket Number: No. 25187.,No. 25176.,25176.,25187.
• Citation: 117 S.W.3d 198
• Parties: Willa Dean LINTON, Appellant/Respondent, v. James Calvin LINTON, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

117 S.W.3d 198

Willa Dean LINTON, Appellant/Respondent, v.James Calvin LINTON, Respondent/Cross-Appellant.

No. 25176.

No. 25187.

Missouri Court of Appeals, Southern District, Division One.

October 17, 2003.

W. Henry Johnson, Sims, Johnson, Wood & Farber, Neosho, for Appellant.

Greg R. Bridges, Evenson & Carlin, L.L.C., Pineville, for Respondent.

ROBERT S. BARNEY, Presiding Judge.

Willa Dean Linton("Wife") appeals from the judgment of the Circuit Court of McDonald County dissolving her thirty-seven year marriage with James Calvin Linton("Husband").In her sole point relied on, Wife maintains the trial court's award of $200.00 a month maintenance from Husband constituted error and an abuse of discretion by the trial court and she requests additional maintenance from Husband.Husband raises two points on his appeal.In his first point, Husband chiefly posits error on the part of the trial court in dividing the marital property, asserting the distribution of the property was inequitable because Wife received "too great a proportion of cash assets to which she made no contribution."In his second point Husband maintains the trial court erred in granting Wife any maintenance at all.

"`In a court-tried case, the decree of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.'"Kester v. Kester,108 S.W.3d 213, 218(Mo.App.2003)(quotingRivers v. Rivers,21 S.W.3d 117, 121(Mo. App.2000))."[W]e review the evidence and inferences in the light most favorable to the trial court's decision and disregard all contrary evidence and inferences."Id."Judging credibility and assigning weight to evidence and testimony are matters `for the trial court, which is free to believe none, part, or all of the testimony of any witnesses.'"Love v. Love,72 S.W.3d 167, 171(Mo.App.2002)(quotingIn re Marriage of Haugh,978 S.W.2d 80, 82(Mo. App.1998))."We presume that the trial court took into account all evidence and believed such testimony and evidence that is consistent with its judgment."Id."The party challenging the trial court's judgment in a dissolution of marriage has the burden of demonstrating error."Id.

The record shows that Wife and Husband were married on June 5, 1964.At the time of trial, Wife was 55 years of age.Wife being 17 years of age and Husband being 18 years of age at the time of their marriage, we discern that Husband was 56 years of age at the time of trial.

Wife testified that during the first twelve to fifteen years of the marriage she stayed home to care for the three children born of the marriage.Wife then worked part-time as a cook for the Southwest City School for three or four years.Thereafter, she attended cosmetology school, and eventually opened her own beauty shop in Southwest City in 1981 or 1982.Wife operated that business until the time of the separation of the parties.

Wife related she took home approximately $400.00 per month while operating the beauty shop.She testified that with the monies she earned, she paid for groceries for the family, presents for the children, and automobile and other miscellaneous expenses.Wife also related that she suffered from shoulder problems, flat feet, back trouble, and migraines.

Wife testified she was then living with her mother and was not incurring any rent or utility expenses.However, she set out that she anticipated expenditures in the range of $2000.00 per month once her marriage was dissolved and she lived on her own.

Husband testified that he had been working at a phone company for almost thirty-three years.He related his take home pay was in the vicinity of $700.00 to $800.00 a week.Husband further testified that he alone funded all of the investments identified in the marital property schedules presented to the trial court and felt that Wife was not entitled to half the marital properties because he had earned all the money used to purchase the marital assets.He related that his primary retirement account was funded entirely by his employer and no money was taken from his paycheck to fund the account.

Husband also testified that he had previously been diagnosed with thyroid cancer some two and one half years prior to trial, underwent surgery for its removal, received radiation therapy, and that as of the time of trial, the cancer had not returned.

Both parties acknowledged no outstanding marital obligations existed and their three children were emancipated.

The value of marital assets awarded to Wife by the trial court amounted to $286,749.77, and the value of marital assets awarded to Husband totaled $288,459.00.¹Husband was ordered to pay Wife modifiable maintenance in the amount of $200.00 per month.

We first address Wife's motion to dismiss Husband's first point of his appeal.Husband's first point sets out:

The court erred in it's [sic] division of marital property in this case as no factual findings were made as to the value of certain marital property and it's [sic] division as requested by [Husband], and in that the distribution of property was inequitable in that [Wife] received too great a proportion of cash assets to which she made no contribution.

Wife maintains this point fails to comply with the provisions of Rule 84.04(d)(1) because the point fails to "state precisely the legal reasons for [Husband's] claim [of] reversible error" and further, fails to "explain in summary fashion why[, in the context of the case, those] legal reasons support the [claim of] reversible error."²We agree.

Points relied on in a cross appeals are subject to the same requirements of Rule 84.04 as initial appeals.SeeM.C. v. Yeargin,11 S.W.3d 604, 611(Mo.App.1999).Points relied on must follow three requirements: (1) state the ruling or action of the trial court from which the appellant complains; (2) why it is erroneous; and (3) what evidence was before the court that would support the correct ruling.J.A.D. v. F.J.D.,978 S.W.2d 336, 338(Mo. banc 1998).

Husband's point relied on is merely a bald assertion that the trial court erred in not entering factual findings and in dividing the marital property.Seeid. at 339.Abstract statements, standing alone, do not comply with Rule 84.04(d).In re T.E.,35 S.W.3d 497, 507(Mo.App.2001);In re Marriage of Beeler,26 S.W.3d 610, 613(Mo.App.2000);In re Marriage of Thomas,21 S.W.3d 168, 178(Mo.App.2000);see alsoThummel v. King,570 S.W.2d 679, 685-86(Mo. banc 1978).

The purpose of the requirements regarding points relied on is to give notice to the party opponent of the precise matters that must be contended with and answered and "to inform the court of the issues presented for resolution."Thummel,570 S.W.2d at 686.If this Court must resort to searching the argument portion of the brief or the record on appeal to determine or clarify the nature of the asserted claims, we may interpret the claims differently than the opponent or than was intended by the party asserting the claim.Seeid.The appellate court's function is to examine trial court error asserted by the party, not to serve as advocate for any party to an appeal.Seeid.Where a brief fails to comply with the applicable rules and does not sufficiently advise the court of the contentions asserted and the merit thereof, "the court is left with the dilemma of deciding that case(and possibly establishing precedent for future cases) on the basis of inadequate briefing and advocacy or undertaking additional research and briefing to supply the deficiency."Id."Courts should not be asked or expected to assume such a role."Id.While we could dismiss Husband's first point of his appeal, we, nevertheless, exercise our discretion and review the record for plain error pursuant to Rule 84.13(c).

We initially note that "`[a]ll property acquired by either spouse subsequent to the marriage, and prior to a decree of legal separation or dissolution is presumed to be marital property regardless of whether title is held individually or jointly.'"Coleberd v. Coleberd,933 S.W.2d 863, 868(Mo.App.1996)(quotingKettler v. Kettler,884 S.W.2d 729, 731(Mo.App.1994));seeClark v. Clark,919 S.W.2d 253, 254(Mo.App.1996).

Furthermore, the trial court is afforded broad discretion in its division of marital property.Myers v. Myers,47 S.W.3d 403, 407(Mo.App.2001)."[A]n appellate court will interfere only if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion."In re Marriage of Wright,990 S.W.2d 703, 709(Mo.App.1999).

As best we discern from our review of the argument portion of Husband's first point, he appears to present two primary complaints.He first questions the trial court's valuation of the marital home.Husband argues the fair market value of the home was $80,000.00, while Wife's appraiser testified to a value of $117,750.00.The court found the fair market value of the marital home and attendant real estate to be $107,000.00.The record reveals that a week before trial, Husband's appraiser had valued the property at $97,000.00."Inasmuch as (1) the value assigned by the trial court was within the range of values in the evidence ... and (2)an appellate court defers to the trial court even if the evidence could support a different conclusion,"we hold the trial court did not err in valuing the marital home and property at $107,000.00.Marriage of Stephens,954 S.W.2d 672, 675(Mo.App.1997).

Husband also complains of the trial court's division of the parties' marital property.He argues he was the primary source of income during the marriage of the parties and should have been accorded more than fifty percent of the marital properties.While the record shows Husband was the primary bread winner during the marriage, the record also shows that Wife stayed home for fifteen years and was the primary care-giver of the parties'...