Marriage of Irions, In re, 21966

• Decision Date: 25 February 1999
• Docket Number: No. 21966,21966
• Citation: 988 S.W.2d 62
• Parties: In re the MARRIAGE OF Virginia Carol IRIONS and John Thomas Irions. Virginia Carol Irions, Petitioner-Appellant, v. John Thomas Irions, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 62

988 S.W.2d 62

In re the MARRIAGE OF Virginia Carol IRIONS and John Thomas Irions.

Virginia Carol Irions, Petitioner-Appellant, v. John Thomas Irions, Respondent-Respondent.

No. 21966.

Missouri Court of Appeals,

Southern District,

Division Two.

Feb. 25, 1999.

King E. Sidwell, Blanton, Rice, Sidwell & Nickell, L.L.C., Sikeston, for Appellant.

Lawrence H. Rost, for Respondent.

PHILLIP R. GARRISON, Chief Judge.

Virginia Carol Irions ("Wife") appeals from the decree entered in her suit against John Thomas Irions ("Husband") for dissolution of their marriage. She contends that the trial court erred in its division of marital property and its failure to award her maintenance.

Wife and Husband had two emancipated children and had been married almost thirty years when this case was tried. Wife worked as a production line employee in a shoe factory, but at Husband's direction, she quit that job when their son was born and was not employed outside the home for the next fourteen years. As of the time of trial, Wife had been employed as a teacher's aide for eight years and was working 35 hours per week, earning $6.10 per hour.

Husband had been employed by Noranda Aluminum, Inc. ("Noranda") for 22 years, and at the time of trial was earning a gross income in excess of $3,174 per month from that employment. ¹ He was also engaged in a farming operation with his brother which, according to an evaluation of Husband and Wife's income tax returns, provided them with a "net cash flow averaging in excess of $33,665 per year for the five (5) years" preceding the trial. ²

This case was tried on July 13, 1995, and was taken under advisement. At that time, the trial court requested that the attorneys submit proposed decrees with suggestions within ten days, and said that it would render a decision "as quick as possible." Based on the record before us, it appears that nothing further occurred in this case until April 10, 1996 (almost nine months later), when the trial court entered an Interlocutory Order of Dissolution after being asked to do so by Husband's attorney because of problems arising from the unresolved dissolution. It was not until October 15, 1997, two years and three months after the trial, that the trial court entered a judgment in which the matters of property division and maintenance were decided. ³

Our review is pursuant to Rule 73.01(c) as construed in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment 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. Id. at 32. Under this standard, considerable deference is accorded judgments turning on evidentiary and factual evaluations by the trial court. In re Marriage of Fry, 827 S.W.2d 772, 775-76 (Mo.App. S.D.1992). No such deference obtains, however, when the law has been erroneously declared or applied. Id. at 776.

Wife's first point relied on is:

The trial court erred in its division of marital property because RSMo.s 452.330 requires the court to consider the economic circumstances of each spouse at the time the division of property becomes effective and the trial court did not apply this standard in that the property was valued as of the date of trial July 13, 1995 (except retirement account valued one (1) year prior) and no order was entered or effective for division of property until two and one-fourth (2 1/4) years later on November 15, 1997.

In this case, the marital property included a marital home, a 35-acre farm, ⁴ a "Holiday Rambler Trailer," Husband's 401(k) plan, furniture, three vehicles, and a one-half interest in farm equipment. Apparently, the 35-acre farm was sold prior to the decree and the proceeds were divided between Wife and Husband with each receiving $10,000. The evidence indicated that in May 1995, two months prior to trial, Husband's 401(k) plan had a value of $55,000. At the time of trial (July 13, 1995), however, there was testimony that Husband had borrowed $25,000 from that plan in order to finish making a crop and purchase additional farming equipment. According to Husband, he was paying a total of $520 per month to repay the loan on the 401(k) plan.

Husband was also vested under two retirement plans provided by Noranda. The only evidence concerning the value of those plans was as of July 22, 1994, approximately one year prior to trial. At that time, one had a "present value" of $60,733.83 which would provide an "accrued monthly benefit" at age 65 of $1,035.65 per month, and the other had a "present value" of $3,704.01, with an "accrued monthly benefit" of $65.89. At the time of trial, Husband had worked a total of 22 years for Noranda, all of which was during the marriage. Benefits under the Noranda retirement plans were calculated by using the following formula: "1 3/4% of your 'Average Monthly Compensation', multiplied by your 'Benefit Service,' " from which is deducted 3/4% of the employee's "estimated 'Social Security Benefit Amount.' " "Average Monthly Compensation" was defined as the "monthly average of your compensation, as reported on your W-2 form, for the last 4 full calendar years plus year-to-date to time of termination or retirement." "Benefit Service" was defined as an employee's full-time employment with the participating company after January 1, 1970, while not covered by another pension plan or collective bargaining agreement. While the record before us does not reflect the age of either of the parties, an employee under a Noranda retirement plan could retire at age 55 or at age 65. Under the "early retirement" option, benefits were calculated using the same formula as for normal retirement. The difference was that the benefits were calculated as of the early retirement date rather than the date of normal retirement.

The trial court awarded the following property to Wife which it valued as follows: the marital home ($60,000); Holiday Rambler Trailer ($7,500); Ford Explorer ($12,000); one-half of Husband's 401(k) ($20,000); furniture ($5,000); and one-half of the proceeds from the sale of the 35-acre tract ($10,000). The total valuation of this property was $114,500. In addition, Wife was awarded her retirement plan through her employment as a teacher's aide. ⁵

The trial court valued and awarded the following property to Husband: one-half of the proceeds of the sale of the 35-acre tract ($10,000); one-half of the farm equipment ($49,000); ⁶ two 1994 pickup trucks (net value of $12,500); and the balance of his 401(k) plan after the payment of $20,000 to Wife (the court assumed that the balance awarded to Husband was worth $20,000). Husband was ordered to assume debts totaling $37,400, resulting in a net valuation of the property awarded to him of $54,100. In addition, however, Husband was awarded all of his interest in the Noranda retirement plans, but no value was placed on them.

The general rule is that the date of valuation of marital property is the date of trial. Taylor v. Taylor, 736 S.W.2d 388, 391 (Mo. banc 1987). Section 452.330.1(1), however, directs that the court shall divide the marital property in such proportions as it deems just after considering several factors, including the economic circumstances of each spouse at the time the division of property is to become effective. In In re Marriage of Gustin, 861 S.W.2d 639 (Mo.App. W.D.1993), the court considered the interaction of these two principles in a case where the decree dividing the marital property was not entered until six months after the trial. In that case, the major marital asset was a large amount of stock which had fluctuated in value considerably during the two months prior to the conclusion of the trial, and the trial court, in distributing the property, relied on a valuation which was not the most recent one available. The Western District of this Court reversed and remanded the case for the trial court to receive additional evidence on the value of the marital property because the court had failed to consider the economic circumstances of the parties at the time the division was to become effective and had failed to value the property at the time of trial. Id. at 644. In doing so, the Court said:

Valuation of property should be reasonably proximate to the date the division is to be effective. If the effective date of the distribution is not reasonably proximate to the date of valuation, the court should hold another hearing to establish a valuation as close to the effective date of the division as possible.

Id.

Husband argues that Gustin is distinguishable from this case because here the assets were not of the type to have ever-changing values. He points out that in Gustin, the court said, with reference to the need for a hearing to establish a valuation close to the effective date of the division, that "[t]his is especially important in a case such as this in which assets are subject to ever changing value." Id. In this case, however, many of the assets were subject to change with respect to value. This is especially true with regard to Husband's 401(k) plan and his retirement plans. The possibility of such fluctuations was enhanced by the long delay between the reception of the evidence and the decree dividing the property. Furthermore, we do not consider Gustin to be limited in application to cases involving large amounts of publicly owned stocks. Such an interpretation would ignore the underlying principle of Gustin (i.e., the necessity of considering the economic circumstances of the parties at the time the division is to become effective).

In Price v. Price, 921 S.W.2d 668, 675-76 (Mo.App. W.D.1996), almost six months elapsed between the trial and the decree. The assets divided in the decree included the husband's personal savings plan which was funded with stock. The trial court's valuation of the plan was based on its value...