Marriage of Buthod, In re, WD
| Decision Date | 15 September 1981 |
| Docket Number | No. WD,WD |
| Parties | In re the MARRIAGE OF Waneta Rose BUTHOD and Marvin Victor Buthod. Waneta Rose BUTHOD, Petitioner-Respondent, v. Marvin Victor BUTHOD, Respondent-Appellant. 32148. |
| Court | Missouri Court of Appeals |
William A. Seibel, Jefferson City, for respondent-appellant.
Ronald J. Prenger, Jefferson City, for petitioner-respondent.
Before PRITCHARD, P.J., and TURNAGE and CLARK, JJ.
Marvin Buthod appeals from the judgment dividing marital property in connection with the dissolution of his marriage with Waneta Buthod. The court ordered the real estate owned by the parties to be vested in them as tenants in common with such property to be sold when the youngest child attained majority, married or became emancipated, and provided for the division of the proceeds of the sale. The judgment also awarded custody of the four minor children to Waneta and awarded her child support, maintenance and attorney fees. The only points which require an opinion are those relating to the division of the marital real estate and the propriety of the entry of the judgment. Reversed in part and remanded.
The parties were married in 1958 and separated in 1977. There were four children under the age of twenty-one at home at the time this cause came on for trial in 1978. The parties owned a home located on three and one-half acres which was marital property. Waneta valued the home at $30,000 and Marvin valued it at $35,000. It was subject to a purchase money mortgage of about $9,200 and the monthly payment of principal and interest was $60.
At the conclusion of the trial, the court informally gave his views of the case in which he stated that he felt the property should be divided equally, but that Waneta should be allowed to remain in the home until the youngest child attained his majority, was married or became emancipated. The court indicated that Waneta should be allowed a credit for the reasonable repair and maintenance expenses which she paid. The court further indicated she should receive a credit for all sums which she paid on the principal and interest payments and taxes. The court indicated that Marvin should pay child support and maintenance.
Apparently there was considerable disagreement between counsel as to the form of the judgment entry with the result that a formal judgment was not entered until July, 1980.
Marvin first contends that the judgment, as entered, differed considerably from the statements made by the court following the hearing which resulted in two inconsistent judgments. The comments made by the court following the hearing amounted only to informal observations by the court and did not constitute a judgment. The only judgment entered in this case was the formal judgment of July, 1980, and it is the decretal portion of that judgment which controls the disposition of this case. In Re Marriage of Schafer, 609 S.W.2d 198, 200 (Mo.App.1980). Since the informal comments made by the court did not constitute a judgment, the court did not enter two judgments, but only entered the one in July, 1980.
Marvin next contends the court made an inequitable division of the real estate. In the judgment the court ordered that Waneta would have the right to reside in the home until the youngest son attained the age of majority, was married or became emancipated. At that time the court ordered the home sold and the proceeds remaining after the expenses of sale to be divided as follows: (1) The purchase money mortgage to be paid. (2) Waneta would receive one-half of the net proceeds, plus a credit for all sums paid for the reasonable expenses of repairs and maintenance of the residence and for all mortgage payments, real estate taxes and homeowner's insurance. (3) Marvin would receive the balance. The court declared each of the parties to be tenants in common in the real estate.
In Corder v. Corder, 546 S.W.2d 798, 804(6) (Mo.App.1977) this court held that by § 452.330, RSMo 1978, the legislature has mandated that the court must decree a division of the marital property upon dissolution of a marriage. Corder specifically disapproved a division which included making the parties tenants in common in marital real estate. Section 452.330 provides that the court shall divide the marital property after considering all relevant factors, which includes the desirability of awarding the family home or the right to live therein to the spouse having custody of any children. The holding in Corder applies in this case that the court must divide the marital property even though it is desirable to allow the spouse having custody of...
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