Marriage of Hunt, In re, s. 20382

• Decision Date: 18 November 1996
• Docket Number: 20383,Nos. 20382,s. 20382
• Citation: 933 S.W.2d 437
• Parties: In re the MARRIAGE OF James M. HUNT, Petitioner-Appellant, and Karen L. Hunt, Respondent-Respondent, Dr. Jack G. Hunt and Shirley Hunt, Third-Party Respondents-Appellants.
• Court: Missouri Court of Appeals

Page 437

933 S.W.2d 437

In re the MARRIAGE OF James M. HUNT, Petitioner-Appellant and Karen L. Hunt, Respondent-Respondent Dr. Jack G. Hunt and Shirley Hunt, Third-Party Respondents-Appellants.

Nos. 20382, 20383.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 18, 1996.

Jasper N. Edmundson and Sheila Viets, Edmundson, Hopkins & Ellis, Poplar Bluff, for Appellants Dr. J.G. Hunt & Shirley Hunt.

Thomas David Swindle, Dale E. Nunnery, Swindle & Nunnery, Doniphan, for Appellant James M. Hunt.

Siegrid Smith Maness, Shawn Boyd, Maness & Miller, Doniphan, for Respondent Karen L. Hunt.

PREWITT, Judge.

James M. Hunt (Husband), his father, Jack G. Hunt, and stepmother, Shirley Hunt, appeal from a judgment dissolving Husband's marriage with Karen L. Hunt (Wife) and granting other relief and obligations. The appeals were consolidated.

Husband and wife were married in Doniphan, Missouri, on July 22, 1977. They had no children. The couple separated in May of 1989. At the time they were married, and for several years thereafter, Wife required insulin shots to control her diabetes. Other than that, she was in reasonably good health.

Due to Husband's employment, they relocated twice early in their marriage. Wife worked as a nurse's aide, an office clerk, and a food-service worker. Throughout their marriage, Husband was employed by his father in various enterprises in which his father was involved.

In 1985, the couple returned to Doniphan where Wife began working at a bowling alley and a radio station, both owned by Husband's father. In July of 1985, Husband and Wife purchased a home and eight acres in Ripley County, Missouri, for $30,000. To finance this purchase, the couple borrowed $25,000 from husband's father, and $10,000 from husband's life insurance policy.

In August of 1986, Husband and Wife entered into an oral agreement with Husband's father and step-mother to purchase the bowling alley where Wife was employed. Arrangements concerning the purchase were never reduced to writing. The parties agree that the initial purchase price was $150,000, later reduced to $75,000 in 1987. All parties testified that monies for the purchase of the bowling alley were to come from annual monetary gifts received by the couple from Appellants Jack Hunt and Shirley Hunt, but variances exist regarding the amounts ultimately applied toward the purchase price of $75,000. Wife testified that $40,000 had been applied toward the purchase price. Husband testified that the balance on the loan was somewhere between $34,000 and $35,000, and his financial statement indicated an indebtedness on the bowling alley in the amount of $41,019.20 as of May 17, 1992. Shirley Hunt, Husband's step-mother, was "almost positive" that $30,000 had been applied toward the principal.

On November 21, 1986, Husband signed a promissory note in the amount of $175,000.00 in favor of Jack Hunt and Shirley Hunt, for the purpose of constructing and initiating the operation of a radio station. Although Wife was aware of plans for the couple to build and operate such a station, she did not sign the note, and testified that she had no knowledge until the dissolution proceedings were under way that Husband had done so. Husband's testimony at the dissolution hearing was vague concerning the balance he owed on this promissory note. His "Liabilities and Capital Balance" statement filed with the court lists the balance on said note, as of December 31, 1990, to have been $62,882.05; whereas, his "Income and Expenses Statement" indicated that the balance of said note, as of March 17, 1992, was $93,522.05.

In September of 1987, Husband and Wife purchased 78 acres in Mountain View for $24,500, intending to build a radio station and tower there. Both testified that the funds for the purchase of the land were provided from "gift money" received from Appellants Jack Hunt and Shirley Hunt. Construction of the station and tower did not begin until after the couple separated. In March of 1990, the station began operation. Husband was station manager until "the early part of 1992."

In March of 1988, James and Karen refinanced the loan on their home, borrowing $50,549.33. The house was appraised at that time for $40,000.00. Proceeds from the loan were used to repay Dr. Hunt ($25,000) and husband's life insurance policy ($10,000), as well as consolidation of other debts of the couple.

In 1986, 1987, and part of 1988, Husband and Wife worked together operating the bowling alley, until Wife's health failed. Thereafter, Husband continued to manage the business. Wife developed serious health problems due to the progression of her diabetes. In June of 1988, Wife underwent heart surgery, and in October of that same year had laser surgery on her eyes. Her eyesight did not improve following the surgery.

In February of 1989, without the couple's permission or any prior knowledge on their part, the note secured by a deed of trust on their home was paid by Shirley Hunt. The amount of the pay-off was $50,024.68. Husband testified that following the pay-off arrangements were made with his step-mother for repayment of that amount and a schedule was established for monthly payments, including interest, to be paid by the couple to Appellants Jack Hunt and Shirley Hunt. Both Shirley Hunt and Husband testified that Husband signed a $50,000 promissory note in favor of Jack Hunt and Shirley Hunt. Husband's evidence indicated that the $50,000 "borrowed from Jack and Shirley Hunt" was intended to pay off the house, the couple's 1986 Bronco, a personal loan on a computer, and the purchase money for the land in Mountain View. Wife stated that she had not been involved in any arrangements to repay the amount her husband's step-mother had paid and had never been asked to sign a promissory note.

Husband stated that 11 payments had been made to his father and step-mother pursuant to their agreement. Shirley Hunt testified that she had received 16 payments, that the principal balance owed on the note was $48,163, and that she had not received any payments after June 27, 1990. At the time of the dissolution hearing, Wife and her father and step-mother were residing in the home.

In April of 1989, Wife's physical condition required that she undergo dialysis treatments. (Husband testified that dialysis began approximately one year prior to their separation.) The following month, Wife was hospitalized in Memphis with peritonitis, an infection attributed to a lack of proper care of her dialysis equipment. On Memorial Day weekend, while Wife was in the Memphis hospital and on dialysis full time, Husband informed her that he wanted his freedom, that he could no longer provide the care her health required, and he wanted a divorce. Husband called Wife's father from the hospital and arranged for him to come and take over the care of his daughter.

Husband testified that in February or March of 1988, he began a sexual relationship with another woman with whom he had been working. He moved in with her in August or September of 1989. Since his separation from his wife, he has fathered two children with this woman. This was part of the misconduct of Husband, as found by the trial court. No misconduct of Wife was alleged or found.

During pre-dissolution hearings, the trial court ordered and Husband agreed to pay temporary maintenance and Wife's medical insurance premiums. Husband made some payments, but at some point stopped. Wife's insurance lapsed, and she was unable to re-obtain insurance because of her poor physical condition. This, in turn, led to her inability to apply for an organ transplant that could have potentially eliminated her diabetes. Wife made a motion in which she asked the trial court to cite Husband for contempt of its order regarding temporary maintenance. The trial court allowed the motion to be heard during the dissolution proceedings.

The trial court, in its findings of fact, concluded that Husband was "guilty of marital misconduct, both before and after the marital separation, which has done severe financial, physical and emotional damage to [Wife]." That misconduct, according to the trial judge's findings, included the following:

Plaintiff, James M. Hunt, mistreated respondent before the separation by leaving her alone and unattended while she was very sick, blind, in a semi-conscious state and was unable to move around on her own. He also mistreated her by allowing her to develop peritonitis in her dialysis tubing. Further, mistreatment occurred when he took her to a hospital in Memphis, Tennessee, admitted her there with peritonitis, then informed her he was leaving her and wanted a divorce. Petitioner's misconduct also involved an affair which began at least two years before the separation of the parties and out of which two children have been born since the separation.

Prior to the final hearing, Wife moved for and the trial court granted joinder of Jack Hunt and Shirley Hunt, apparently because of their alleged interest in several pieces of property at issue in the dissolution action, including the marital residence, a bowling alley, and a radio station situated on Husband and Wife's land. Judgment was entered July 11, 1995.

The scope of our review of this judge-tried case is established by Rule 73.01(c), as construed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decree of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. In re Marriage of Vinson, 839 S.W.2d 38, 42 (Mo.App.1992). We view the evidence and permissible inferences therefrom in the light most favorable to the decree, disregarding all contrary evidence and inferences, mindful that credibility of the witnesses and the weight to be given to their testimony was a matter for the trial court, which was free to believe none,...