Marriage of Goodding, In re
| Decision Date | 03 July 1984 |
| Docket Number | No. WD,WD |
| Citation | 677 S.W.2d 332 |
| Parties | In re the MARRIAGE OF James Clayton GOODDING and Kathleen Goodding. James Clayton GOODDING, Respondent, v. Ruby Kathleen GOODDING, Appellant. 34629. |
| Court | Missouri Court of Appeals |
Thomas M. Schneider, Columbia, for appellant.
W.F. Daniels, Fayette, for respondent.
Before SHANGLER, P.J., and KENNEDY and LOWENSTEIN, JJ.
The wife appeals from a decree of dissolution. James and Kathy Goodding married in August, 1963 and separated in May of 1982. The couple married upon graduation from high school, both went to college earning degrees, James entered the military service, and sometime before 1969 the couple moved back to Missouri. Their three children were born in 1971, 1972 and 1974. Custody of these minor children was awarded to the appellant Kathy without dispute by James. James filed in this court a notice of appeal apparently being dissatisfied with the portions of the judgment relating to his visitation rights. His cross-appeal was consolidated with that of Kathy. James never filed an appellant's brief. Rule 84.04(j). His appeal is treated as abandoned for failure to comply with Rule 84.08, and is dismissed. Rule 84.27. M.H. Siegfried Real Estate, Inc. v. Renfrow, 592 S.W.2d 488, 494 (Mo.App.1979).
Respondent James has worked for Associated Electric for the past seven years. In 1982 he received a yearly gross income of $45,478.00. Losses from farming taken from Schedule F of IRS form 1040 totaled $5,934.00 in 1981. In addition he receives $655 monthly in nontaxable disability benefits from the Veterans' Administration. Kathy was 37 years old at the time of trial, has a Bachelor of Science in Education with an emphasis upon secondary education, and is certified to teach Spanish, French and biology. Sporadically at the beginning of the marriage she worked as a waitress, secretary, clerk, accountant and teacher, with an average duration of six months at a job due to her husband's transfers in the military service. The record does not disclose exactly when James entered or left the military, but it can be surmised his military career began sometime after college and ended sometime before 1969. For the last eleven years of the marriage Kathy was homemaker only, and was not employed outside the home. Since the couple's separation she has worked as a substitute teacher earning $50 a month, and had applied for full-time teaching jobs without success. At the time of the separation she experienced health problems in that she had a breast tumor which required surgical removal. The tumor was found benign. She also had suffered from blackout or fainting spells. The evidence did not disclose whether future medical problems could be expected.
James left the home in May 1982 and moved in with a woman he had met at Eastertime of that year. In June, a month before he filed this suit, he drove his wife to Columbia, Missouri for neurological tests and surgery for her breast tumor. During the car ride, James produced a separation agreement providing for disposition of the couple's property. He told her she was making a big deal of the surgery and proceeded to induce her to sign the agreement. The agreement would have allowed the parties to continue ownership of the farm, with the wife living in the house and the husband continuing farming the remaining acreage. Kathy and the children would live in the house until the children were emancipated, James would pay taxes, insurance and maintenance--when sold the proceeds would be evenly divided. James agreed to pay $150 per child in support. The trial court found the separation agreement to be unconscionable both in its terms and the circumstances under which it was executed and did not consider it binding.
Kathy devoted much of her evidence at trial towards detailing her husband's insensitivities towards herself and the children, and his unwillingness to work towards repairing their marriage. This opinion need not repeat those incidents.
James reported under oath an average monthly income in 1982 of $2,576.00 (excluding $655.00 in VA disability benefits), and average monthly expenses for utilities, automobile, insurance, church contributions, food, clothing, medical and dental care, home repairs, recreation, Christmas gifts and vacations totalling $1,402.00. Adding $1,155.00 in temporary maintenance and support his expenses totalled $2,557.00. Kathy reported her monthly income as $1205.00. Included within that total is $1,155.00 received from James in temporary support. Her average monthly expenses, including utilities, automobile, insurance, church contributions, food, clothing, medical and dental care, school, home repairs and upkeep, totalled $2,276.00. $1,200.00 of this sum is spent on the children's needs. Absent from this budget is any amount for housing for her and the three children, presumably because she expected to be awarded or at least allowed to live in the family home.
The court awarded Kathy maintenance of $200 per month for a period of one year unless she earlier remarried or obtained a full-time job, and a total $600 monthly child support. The marital property was divided in the following manner. The court made no specific findings of fact as to the value of the property, and therefore the values supported by the record will be used. Except as noted in two instances, the parties were in agreement as to values.
The court presumably treated James' monthly receipt of $655.00 in VA disability benefits as his separate property. The VA pension is not mentioned in the decree. Since request was untimely no findings or conclusions were made. The court found all of the personal and real property not specifically disposed of in its decree of dissolution as not divisible in kind and ordered its sale, with the proceeds to be divided equally between the parties. This order of sale included 140 acres of farm property located eight miles northeast of Huntsville, where the family home was located, valued at approximately $100,000. The proceeds from the sale of the farm were to first pay off a mortgage debts of $5,300.00 plus interest, and reimbursement to James of one-half of $11,757.00 paid to FHA to discharge a lien on the property. Until the property was sold, possession of the house would remain with Kathy, farm acreage, with James.
Kathy claims the trial court erred in: (1) the division the marital property; (2) ordering the farm sold and equally dividing its proceeds; (3) awarding maintenance of only $200.00; (4) limiting maintenance to a period of one year; (5) awarding child support of only $600.00; and (6) treating the husband's VA disability benefits as his separate property.
The standard of review here is under Rule 73.01; Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); Colabianchi v. Colabianchi, 646 S.W.2d 61 (Mo. banc 1983). Due to the disposition of this appeal the second assignment of error relating to the sale of the property and the home will first be discussed. Section 452.330.1 R.S.Mo. (Cum.Supp.1983) sets forth four nonexclusive factors to be considered in a just division of marital property: (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (2) The value of the property set apart to each spouse; (3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and (4) The conduct of the parties during the marriage. In its decree the court specifically noted its consideration of the four statutory factors. The statute does not require an equal division of property, but rather one which is just, fair and equitable under the particular circumstances of the parties. In Re Marriage of Strelow, 581 S.W.2d 426, 430 (Mo.App.1979).
It is factor three that warrants a reversal. The trial court's order virtually ignores the basic necessity for the wife and children to obtain housing. Having no financial means to obtain this necessity, the court nonetheless ordered the property sold, with the proceeds to be divided equally. The record is completely devoid of any evidence supporting the statement in the decree that the property was not divisible in kind. As a means of accomplishing the legislature's recognition of the "desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children," courts...
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