Marriage of K.B., In re, 12743
| Decision Date | 18 February 1983 |
| Docket Number | No. 12743,12743 |
| Citation | 648 S.W.2d 201 |
| Parties | In re the MARRIAGE of K.B. and R.B. K.B., Petitioner-Respondent, and R.B., Respondent-Appellant. |
| Court | Missouri Court of Appeals |
Donald E. Bonacker, Bonacker & Reynolds P.C., Springfield, for petitioner-respondent.
William H. McDonald, John E. Price, Robert M.N. Palmer, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for respondent-appellant.
K.B., the wife (petitioner), and R.B., the husband (respondent), were married in Kansas in February 1962. Petitioner and respondent are both forty-four years old, and have lived in Springfield since 1970. Three children were born of the marriage: the oldest, age twenty, is now a college student, while the other two, ages eighteen and fifteen, are completing high school. All are in good physical and mental condition.
Both petitioner and respondent are well educated: petitioner became a licensed dental hygienist just prior to the marriage, and respondent became a licensed dentist approximately two years later. Both were employed in their respective fields from the time of the marriage until September 1962, when petitioner quit her job due to their first child being born. Petitioner has worked very little since that time, and the jobs she has had were, for the most part, in areas other than her field of training. However, she has been active in various civic and church groups, and considers herself to be currently employable as a dental hygienist. Respondent has worked steadily in the dentistry field since his graduation from college, gradually building up a private practice.
The petition for dissolution of marriage was filed in March 1981 at which time petitioner and respondent owned a home in Springfield worth approximately $75,000. They had also accumulated interests in numerous businesses, most of which were designed to assist respondent in the advancement of his career. Three of those interests were partnerships with other Springfield dentists: a dental group, which manages the administrative services of a number of dentists, a dental laboratory, which manufactures such items as bridges and crowns used by the dentists, and the dental properties which consists of the land and building where respondent practices. Their interest in each is: the dental group, one-seventh (undisputed value of $3,779), the dental laboratory, one-sixth (undisputed value of $1,169), and the dental properties, one-seventh (disputed value). The disputed value of the dental properties occurred due to different methods of valuation. Petitioner used the raw book value of $53,816, while respondent used the salable value of $10,500 due to restrictive covenants placed on each partner's ability to sell. The trial court found that since respondent had no plans to ever leave the partnership, and since case law requires a "just" valuation, the correct value was $42,500, representing the book value minus an amount for the limitation on disposal.
One other business interest was respondent's incorporated dental practice entitled in his name. Respondent owned all the outstanding shares, the value of which were also disputed. Petitioner claimed the corporation was worth $53,100, but respondent contended that should he sell the corporation, it would not be worth that much. Respondent thus argued $31,900 was the correct valuation. But the court, again finding no evidence that respondent ever planned to sell the corporation, placed the value at $53,100.
On November 18, 1981, the lower court entered an order setting the rights of petitioner and respondent following the dissolution. Petitioner was awarded custody of the children, $300 per month per child as child support, $500 per month maintenance for six months, $300 per month maintenance after six months, the house (worth approximately $43,000 with the amount due on the loan), and various items of personal property. Respondent received visitation privileges with the children, all the business interests and dental equipment, a retirement account, and the personal property in his possession. In addition, respondent was ordered to pay the outstanding bills of the marriage and keep the family's insurance policies in effect. Finally, after finding that the marital property awarded to respondent was worth $53,018 more than that awarded to petitioner, the court split the difference and ordered respondent to pay petitioner $26,509 in six yearly installments, plus interest.
Respondent filed notice of appeal after attempts to set aside and modify the decree were denied.
Respondent's first point relied on claims that the trial court erroneously applied § 452.330.1 1 when, in dividing the marital property, it failed to specify the exact interest of the party receiving the property. The argument is directed toward the decree issued by the trial court on March 25, 1982, which ordered respondent to pay $26,509 to petitioner as a property settlement. That decree stated, in part: Since the decree allows the trial court to later order the sale of respondent's property, he argues that the decree will "almost certainly require further modifications," and thus violates the requirement of "a complete severance of all unity of possession ... between the spouses." Corder v. Corder, 546 S.W.2d 798, 805 (Mo.App.1977).
We do not agree. It is clear that the lower court has ordered a distinct division of the marital property between petitioner and respondent. In fact, respondent's attorney admitted as much when he said: "I'm not saying that the Court has not made a distribution." And it is equally clear that "modification," meaning "sale," will be required only if respondent fails to abide by the order of the court. Here the trial court has divested itself of any further dealings with the property, unlike the cases cited by respondent where the occurrence of a contingency may create a new interest of one spouse in the marital property of another spouse. See In re Marriage of Gehret, 41 Colo.App. 162, 580 P.2d 1275 (1978). The marital property distributed to respondent cannot be taken from him and given to petitioner, it can merely be sold to satisfy the debt that he owes. There has therefore been a valid final distribution and severance of all marital property since "the power given the trial court by § 452.330 (par. 1) to 'divide the marital property' includes the powers necessary to render effective the power to divide." In re Marriage of Kueber, 599 S.W.2d 259, 261 (Mo.App.1980).
Neither is the trial court's order vague or incapable of enforcement by the parties. All property has been distributed; respondent is in debt to petitioner; if that debt is not paid respondent's property will be sold to satisfy it. Again, the respondent's interest in his specific items of property would not be shifted to the petitioner, but rather, his interest would merely be sold to satisfy his debt. The trial court's power to carry out a division of marital property is "virtually unlimited so long as it effects a division contemplated and mandated by Section 452.330." Corder v. Corder, supra, 546 S.W.2d at 806. Respondent's first point is denied.
Respondent's second point attacks the decision of the lower court to award maintenance to petitioner. The award was erroneous, he asserts, as there is no substantial evidence that petitioner is unable to support herself through appropriate employment and because respondent does not have sufficient resources to pay maintenance. Respondent's argument is based on § 452.335.1, which states that maintenance shall be granted only if the spouse seeking maintenance: "(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required...
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