Marriage of Faulkner
| Decision Date | 24 April 1979 |
| Docket Number | Nos. 39539,39215,s. 39539 |
| Citation | 582 S.W.2d 292 |
| Parties | In re the MARRIAGE OF Naomi R. FAULKNER, Petitioner-Appellant, and James W. Faulkner, Respondent. |
| Court | Missouri Court of Appeals |
Richeson, Roberts, Wegmann, Gasauray, Stewart & Schneider, Jack C. Stewart, Hillsboro, for petitioner-appellant.
Geoffrey L. Pratte, Raymond R. Roberts, Roberts & Roberts, Farmington, for respondent.
This is an appeal from a judgment rendered by the Circuit Court of St. Francois County in a dissolution of marriage case. The appellant, Naomi Faulkner, does not challenge the court's finding that the marriage was irretrievably broken, but asserts that the court erred in its division of the parties' marital property.
Naomi and James Faulkner were married for 27 years. No children were born of the marriage. Appellant testified that the couple had not engaged in sexual relations for approximately 10 years prior to the institution of this suit. She admitted, however, to having conducted a six year affair with a "gentleman friend", as well as to having had a brief interlude with another man years before. Respondent testified that his wife drank to excess and stayed out late at night. She would publicly berate him for not imbibing in alcoholic beverages despite his diabetic and ulcerous condition. Upon the parties' separation in August, 1975, the marital property was divided as follows:
The trial court disposed of the remainder of the marital property as follows:
Appellant
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1/2 Proceeds from Sale of Home $19,600.00
Household Goods 4,850.00
Buick Automobile 2,495.00
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$26,945.00
Respondent
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1/2 Proceeds from Sale of Home $19,600.00
Household Goods 2,102.00
Chevrolet Automobile 1,248.00
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$22,950.00
The trial court disposed of the remainder
of the marital property as follows
Appellant
-----------------------------------
Her life insurance 51.07
Missouri Natural Gas Stock 800.00
Ozark Investment Club Shares 1,079.93
Severance Pay and Retirement Fund 13,000.00
1/3 U.S. Savings Bonds 6,152.67
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$21,083.67
Prior Settlement 26,945.00
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Total Shares $48,028.67
Respondent
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His life insurance 2,813.02
Profit Sharing Plan (present value) 20,000.00
2/3 U.S. Savings Bonds 12,305.33
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$35,118.35
Prior Settlement 22,950.00
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Total Shares $58,950.00
Appellant contends that the trial court erred in 9 respects in dividing the marital property. She does not challenge the property division agreed to upon separation or the trial court's disposition of the life insurance policies. The contentions of error are as follows: 1) the attributing to her of salary which she would have received at the Savings and Loan had she not resigned; 2) the attributing to her of the shares of Missouri Natural Gas Stock and Ozark Investment Club; 3) the setting apart to her the $13,000.00 from her severance pay and retirement fund; 4) the finding that the present value of respondent's profit sharing plan was $20,000.00; 5) the failure to find that respondent's retirement plan was of substantial value; 6) the considering of maintenance pendente lite paid to appellant in finding the parties' income to be substantially equal; 7) the considering of future income based on the expected retirement ages of the parties; 8) the overvaluing of assets awarded to appellant and failure to award her a fair share of the U.S. Savings Bonds; and 9) the failure to award appellant adequate attorney's fees.
As this was a court tried case, our review is governed by the framework set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo. Banc 1976). Accordingly the judgment will be affirmed unless it is not supported by substantial evidence, or is against the weight of the evidence or is an erroneous declaration or application of the law.
In her first point, appellant contends that the trial court erred in denying her maintenance and in imputing to her income which could be produced through her best efforts and ability. This latter complaint stems from the court's finding that had appellant not resigned from her position with Ozark Federal Savings and Loan in October 1973, her salary at the time of trial would have been $11,731.23. 1
A court may impute income to a spouse when the spouse's reduced income reasonably could be understood to be a voluntary declination to earn. Foster v. Foster 537 S.W.2d 833 (Mo.App.1976). In a similar vein, a request for maintenance may be denied if the spouse is able to support herself in a course of employment which corresponds with her skills or interests. Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977).
The record reveals that appellant's employment with Ozark Federal Savings and Loan was terminated after she was assaulted in the bank's parking lot by the wife of her extra marital lover. At trial appellant could not recall whether her resignation was voluntary or not. Appellant is currently employed as a realtor, and is compensated on a commission basis.
Following an inquiry into the parties' economic circumstances, the court determined that the income ascribable to each party was substantially equal. Any pre-existing differential in income was deemed to have been offset by respondent's payment of $3,400 to appellant pursuant to the latter's motion pendente lite. The court further found that the appellant, being eight years younger than the respondent, could look forward to earnings for sixteen years prior to her retirement. The respondent, on the other hand, could look forward to earnings for eight years until normal retirement. Aside from having been found to possess a more extended earning potential than the respondent, the appellant was also determined to be in better health than was her husband.
The trial court did not err in denying appellant's request for maintenance or in imputing income to her. In addition to considering the parties' economic situation, the court found that appellant's adulterous relationships and excessive drinking were factors to be taken into account in dividing the marital property. § 452.330 RSMo 1973. The court's findings in these challenged respects were neither unsupported by the evidence nor an abuse of discretion. Appellant's point one is without merit.
In her second and third points relied on, appellant challenges the court's division of marital property because assets which were nonexistent at the time of trial were attributed to her share. The assets referred to in point two were the Missouri Natural Gas Stock and Ozark Investment Club Shares, and those referred to in point three were her severance pay and retirement benefits.
During the course of the marriage, the parties acquired 10 shares of Missouri Natural Gas Stock worth $800. Respondent testified to having endorsed and given the stock certificates to appellant in late 1974 or early 1975. He also testified that he never received any of the proceeds from the sale of this stock. While married, the parties also acquired shares in the Ozark Investment Club. The record reveals that a check for $1,079.93 payable to the respondent was cashed on May 3, 1975. The check bore respondent's signature although he denies ever having endorsed the check, or ever having received the proceeds from the cashing of same. The court found that these two assets had been set aside or appropriated by the appellant.
The court also found that a bank deposit in the amount of $13,000, representing appellant's severance and retirement benefits, was includable in the latter's share of marital property. Appellant contends, however, that the proceeds from the sale of the stock and of the bank account were exhausted at the time of trial. The record indicates that appellant attributes the dissipation of the $14,879.93 to her purchase of snow tires, household goods, income tax payments, real estate broker tuition and a loan of $2,000 to a friend. Appellant did not introduce any evidence substantiating the cost of the items purchased. The record also discloses that appellant did not inform respondent of the existence of the bank account until after the couple were separated. Consequently, respondent never had access to the account.
In order to achieve a just division of marital property, the trial court is empowered to balance the "financial equities" existing between the parties. McCully v. McCully, 550 S.W.2d 911 (Mo.App.1977). The trial court's finding that appellant appropriated these three funds and set them aside unto herself was supported by the evidence and not an abuse of discretion. The inclusion of the depleted assets in the division of marital property apparently stemmed from the court's reluctance to deny respondent the benefit of the assets dissipated by appellant. See, Daniels v. Daniels, 557 S.W.2d 702 (Mo.App.1977). Points two and three are ruled against the appellant.
In her fourth point relied on, appellant contends that the trial court erred in finding that respondent's profit sharing plan had a present...
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