Marriage of Lawry, In re, 18925

• Decision Date: 31 August 1994
• Docket Number: No. 18925,18925
• Citation: 883 S.W.2d 84
• Parties: In Re the MARRIAGE of Robert Michael LAWRY and Sara Sue Lawry. Robert Michael LAWRY, Petitioner-Appellant, v. Sara Sue LAWRY, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 84

883 S.W.2d 84

In Re the MARRIAGE of Robert Michael LAWRY and Sara Sue Lawry.

Robert Michael LAWRY, Petitioner-Appellant, v. Sara Sue LAWRY, Respondent-Respondent.

No. 18925.

Missouri Court of Appeals,

Southern District,

Division Two.

Aug. 31, 1994.

Phillip A. Glades, Joplin, for petitioner-appellant.

Abe R. Paul, The Paul Law Firm, P.C., Pineville, for respondent-respondent.

GARRISON, Judge.

The parties to this dissolution action were married for approximately 24 1/2 years prior to the decree which is the subject of this appeal. They had one child, a girl, who was 19 years old at the time of trial. Husband was employed as director of the lab at Freeman Hospital in Joplin, Missouri, earning over $50,000 per year plus bonuses which had varied from $500 to $2500 per year. Wife had a B.S. in education and was employed as a home economics teacher in the Joplin school system, earning $24,000 per year. The marital property consisted primarily of a home, two automobiles, a camper, boat and trailer, miscellaneous firearms and tools, the parties' IRA and retirement accounts, and various items of household furnishings. Husband appeals from the trial court's division of marital property, as well as its award to Wife of maintenance in the amount of $180 per month and attorney's fees of $1,000.

Pursuant to Rule 73.01, ¹ in a court-tried case the decree or 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, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); In re Marriage of Torix, 863 S.W.2d 935, 937 (Mo.App.S.D.1993). In making that review the evidence is viewed in the light most favorable to the decree. Id.

Husband's first point is a multi-faceted complaint about the division of marital property. Initially, he argues that the division of marital property was disproportionately weighted in favor of Wife. He also contends that the value placed on some of the property awarded to him by the trial court was excessive and not supported by the evidence. As a result, he claims that the value of the property awarded to him was actually $5000 less than set out in the decree. In addition, he argues that the value of the marital property awarded to him should be reduced by an additional $5479, representing the marital debts he was ordered to pay. Assuming those adjustments, he argues that he actually received only 34% of the marital property. ²

Husband's point relied on does not indicate what property was allegedly overvalued. The argument section of his brief refers only to a 1984 Blazer vehicle and his clothing and personal effects. He argues that the Blazer was valued at $3000 but was non-existent at the time of trial. The evidence indicated, however, that the vehicle had been sold by Husband for $4200 after spending $1200 on it a week earlier, thus netting $3000 which was not otherwise accounted for in the division of property.

He also argues that the court's valuation of his personal effects at $3000 was excessive by $2000. This apparently refers to the fact that Husband placed a value of $1000 on those items of property in a "Summary Of Marital And Non-Marital Property And Liabilities," which is also called a DR Form 1, and which was prepared and filed with the circuit clerk by Husband individually. He argues that the trial court was unjustified in "failing to follow its practice of using the value assigned by the person receiving the property." There is, however, no reference to the record or citation of authority supporting that contention. Additionally, the record does not indicate that the form referred to was introduced in evidence.

Section 452.330 ³ requires that the trial court consider "all relevant factors" including the economic circumstances of the parties; the contribution of each of the parties to the acquisition of the marital property; and the conduct of the parties. The specific factors enumerated in § 452.330 are not exclusive and the trial court has considerable discretion and flexibility in dividing the marital property so as to accommodate the needs of the parties. In re Marriage of Torix, 863 S.W.2d at 938. The resulting division of marital property must be equitable, but not necessarily equal. Id.; Schelsky v. Schelsky, 796 S.W.2d 888, 891 (Mo.App.E.D.1990). The statute does not require that each party get what he or she wanted. Bixler v. Bixler, 810 S.W.2d 95, 100 (Mo.App.E.D.1991).

The party challenging the division of marital property has the burden of overcoming a presumption that the division was correct. Bixler v. Bixler, 810 S.W.2d at 100. Because of the discretion vested in the trial court to divide marital property, that division will not be disturbed on appeal unless it is so unduly favorable to one party as to amount to an abuse of discretion. Ludlow v. Ahrens, 812 S.W.2d 245, 249 (Mo.App.W.D.1991); Bixler v. Bixler, 810 S.W.2d at 100. An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of deliberation. Ederle v. Ederle, 741 S.W.2d 883, 885 (Mo.App.E.D.1987).

There was evidence suggestive of misconduct in the instant case. Husband admitted taking one trip to Boston with a female co-worker which he explained was in connection with their job. Wife, however, testified that Husband was often at the co-worker's house when Wife was out of town, would call the co-worker from their home, and would take her for motorcycle rides. Additionally, there was evidence that Husband had liquidated an investment account by signing Wife's name without her knowledge or consent, resulting in the delivery of shares of stock which he still held.

We are unable to conclude, based upon the record before us, that the trial court abused its discretion in either valuing or dividing the marital property.

Husband also contends that the trial court failed to divide all of the marital property in violation of § 452.330. An appeal from the original decree in this case was dismissed in part because it did not dispose of all the marital property. Lawry v. Lawry, 854 S.W.2d 842 (Mo.App.S.D.1993). Thereafter, the trial court entered the Amended Decree of Dissolution which is the subject of this appeal by which it found that "this is a full and complete disposition of all marital and non-marital assets and liabilities."

Husband now contends that the Amended Decree omitted two sets of "old mattresses." He says that they were "valued by the Parties at $150 and designated to be set aside to Husband" in a document also referred to as a DR Form 1, which was filed jointly by the parties and was introduced at trial. The exhibit apparently indicated the values each party placed on the individual items of marital property as well as the party who was requesting it. It also contained a designation of the items which were disputed either as to value or the party to receive them. This exhibit has not been filed with this court, and the record before us does not reflect that these mattresses existed, other than by reason of the fact that they were listed in the original decree without a valuation. We note, however, that the DR Form 1 filed only by Husband, which is a part of the legal file, contained no reference to two old mattresses. Additionally, Husband filed a motion for leave to file the transcript and legal file from the original appeal in this case in which he stated that the trial court had "amended the Decree of Dissolution of Marriage so as to completely divide all of the marital property in accordance with the order of this Court." In summary, the record before us does not reflect that the parties owned two sets of old mattresses which were not divided, and we are unable to conclude that because of this alleged omission we are deprived of jurisdiction for the reasons specified when the earlier appeal was dismissed in Lawry v. Lawry, 854 S.W.2d at 844.

Husband also complains that the trial court failed to divide "certain property as the parties agreed." By reference to the argument section of his brief, it appears that he is referring to an "organ, pool table and miscellaneous hand tools and car tools." He says that "both Wife and Husband were requesting this property be set aside to Husband," and cites Meyerpeter v. Meyerpeter, 664 S.W.2d 11 (Mo.App.E.D.1983), as authority for the proposition that it is an abuse of discretion for the trial court to award marital property to a spouse who requested that it be set aside to the other party. The record, however, does not support Husband's contention in this regard. His argument refers to the joint DR Form 1 which was referred to earlier and which has not been filed with this court. The record does not indicate its contents other than some incomplete references contained in the trial transcript. There was no testimony concerning the organ or the pool table. As to the tools, the evidence indicated a dispute as to their valuation, including Husband's testimony that he was agreeable that Wife could have those items at the price assigned by her in the joint DR Form 1. He also testified that it was agreeable with him for the court to add up all the assets and all of the debt and make a "fair decision." The record simply does not support Husband's contention with respect to this allegation of error.

Finally, in his first point, Husband complains that he was required to pay all of the marital debt even though most of it was incurred by Wife after the separation and after she had agreed to assume at least part of it. This complaint apparently refers to credit card and other similar debts totaling $5479. The record presented to us does not reflect that Wife agreed to assume any of that debt, nor does it indicate an abuse of discretion in ordering Husband to pay it....