Marriage of Medlock, In re

• Decision Date: 20 April 1988
• Docket Number: No. 15276,15276
• Parties: In re the MARRIAGE OF Morion Patricia MEDLOCK and Doyle Edward Medlock. Morion Patricia MEDLOCK, Respondent, v. Doyle Edward MEDLOCK, Appellant.
• Court: Missouri Court of Appeals

Page 437

749 S.W.2d 437

In re the MARRIAGE OF Morion Patricia MEDLOCK and Doyle

Edward Medlock.

Morion Patricia MEDLOCK, Respondent, v. Doyle Edward MEDLOCK, Appellant.

No. 15276.

Missouri Court of Appeals,

Southern District,

Division One.

April 20, 1988.

David T. Welch, Philip J. Morgan, Phillips, McElyea, Walker & Carpenter, P.C., Camdenton, for appellant.

William F. Washburn, Eldon, for respondent.

CROW, Chief Judge.

Doyle Edward Medlock ("Doyle") appeals from a decree dissolving his 20-year marriage to Morion Patricia Medlock ("Patricia"). He avers the trial court (1) erred in its "valuation and division of the pension plans owned by the parties," (2) wrongly ordered him to pay Patricia $375 per month for support of the parties' son, (3) improperly commanded him to pay $1,750 to Patricia for attorney fees, and (4) abused its discretion in awarding Patricia "a disproportionate amount of the marital assets."

Doyle, age 62 at time of trial, and Patricia, age 60 at time of trial, ¹ began cohabiting in 1954 and married May 10, 1967. At time of trial they had one unemancipated child, Gregory Lee Medlock, born May 30, 1973.

The marital real estate consisted of two lots, to which we shall refer, respectively, as Lot 27 and Lot 29, their designations at trial. A real estate appraiser testified that Lot 27 "has 95.1 feet of frontage on the lake," and that Lot 29 "has 233 feet of frontage." A house sits on Lot 27. However, said the appraiser, "I have been told that the garage does extend over onto Lot 29."

As we comprehend the evidence, Lot 29 is encumbered by a deed of trust securing payment of a "note," the unpaid principal balance of which, according to Patricia, is "[p]robably about $47,000." It appears from the fragmentary evidence regarding the note that the maker was an emancipated child of the parties, and that neither Patricia nor Doyle signed it.

As to the value of the real estate, the appraiser testified that if 108 front feet of Lot 29 were taken from that parcel and added to Lot 27 (the house site), the remaining part of Lot 29 (having 125 feet of lake frontage) would have a fair market value of $32,500. Lot 27 (enhanced by the 108 feet taken from Lot 29) would have the house and 203.1 feet of lake frontage, and, according to the appraiser, a fair market value of $129,000. The appraiser valued the land at $260 "per front foot."

The trial court, in its findings of fact, valued the real estate, in the aggregate, at $161,500. The trial court adopted the appraiser's value of $260 per foot of lake frontage for the land, and the trial court valued the "improvements and home" at $76,220. ²

The decree ordered that Lots 27 and 29 be sold at a price mutually agreeable to Patricia and Doyle within 90 days of the date of judgment, with the "net proceeds" divided 65 per cent to Patricia and 35 per cent to Doyle. The decree further provided:

"Unless otherwise agreed, it is ordered the parties shall accept any offer on the house of $125,000.00 or greater and any offer on the vacant lot of $30,000.00 or greater. If the property is not sold within 90 days, said property shall be sold at a public auction for the highest price obtainable."

The above-quoted provision is peculiar in that the decree says nothing about taking any land from Lot 29 and adding it to Lot 27. Lot 29, as we have seen, has 233 feet of lake frontage. At the rate of $260 per front foot fixed by the appraiser and accepted by the trial court, Lot 29, if sold intact, would--but for the $47,000 encumbrance--have a fair market value of $60,580, more than twice the $30,000 figure in the above provision.

However, because of the $47,000 encumbrance it is impossible to predict what a buyer might be willing to pay for Lot 29. The encumbrance on Lot 29 would, so far as we can determine, remain unimpaired by a sale, and we profess no ability to predict whether the maker of the note will ultimately pay it. Obviously, a buyer of Lot 29 would face the possibility of having to pay the note in order to protect his investment.

If the trial court did contemplate taking part of Lot 29 and adding it to Lot 27 (as the $30,000 figure arguably suggests), the encumbrance problem would remain, and if the parcels were bought by different buyers, both purchasers would be faced with uncertainty.

On the other hand, if Lots 27 and 29 were sold as they presently exist, and if they were bought by different purchasers, a problem would exist if the garage on Lot 27 did indeed encroach on Lot 29. That would obviously depress the purchase price of Lot 27.

Doyle, however, assigns no error regarding the court-ordered sale. Instead, he protests that the overall division of the marital assets gives Patricia more than she should have gotten. Therefore, we shall not further address the manner in which the trial court chose to dispose of the real estate, except insofar as it affects the value of marital assets apportioned respectively to Patricia and Doyle.

Doyle's first assignment of error pertains to the "pension plans" and has four components. The first component we address is component "B," which maintains that the trial court erred in treating 100 per cent of Doyle's pension as marital property. According to Doyle, the trial court should have treated 23 per cent of the pension as Doyle's separate property, as his entitlement to that percentage was acquired prior to the marriage.

Doyle testified without contradiction that he worked for Union Electric 26 years before retiring in January, 1985. He receives a pension from Union Electric amounting to $617.87 per month. In his testimony, Doyle placed a value of $60,000 on his "pension plan." How he arrived at that figure is unexplained.

The trial court, in its findings of fact, found that Doyle's "retirement plan with Union Electric" had an approximate value of $60,000.

Doyle insists that inasmuch as he worked for Union Electric 26 years and the parties were married only 20 years, 6/26 (23 per cent) of his pension should have been considered his separate property.

The first problem with Doyle's contention is that nowhere in the trial court's findings of fact or conclusions of law does the trial court state that it treated 100 per cent of Doyle's pension rights as marital property, and nowhere does the trial court set forth the aggregate value of the marital property awarded respectively to Patricia and to Doyle.

More importantly, however, there was no evidence from which the trial court could have determined the date when Doyle began acquiring pension rights with Union Electric. While Doyle's employment there antedated the marriage, Doyle presented no evidence showing when his pension rights began to accrue.

Doyle, as appellant, bears the burden of demonstrating error. State ex inf. Ashcroft, ex rel. Plaza Properties, Inc. v. City of Kansas City, 687 S.W.2d 875, 876 (Mo. banc 1985); Union Electric Co. v. McNulty, 344 S.W.2d 37, 39 (Mo.1961). He has failed to do so as to component "B" of his first point.

Component "C" of Doyle's first point attacks the trial court's finding regarding Patricia's "pension" of $250 per month. Patricia testified without contradiction that she worked 33 years before becoming "disabled" in 1976. At that time, said Patricia, she started "collecting disability." At time of trial, according to Patricia, she was receiving "disability from the Teamster's Union" of $250 per month. Elsewhere in her testimony, Patricia characterized the $250 per month as "retirement." Patricia valued her "pension plan with Teamsters" at $20,000, but supplied no clue as to how she arrived at that figure. Doyle, during his testimony, acknowledged that he "adopted" Patricia's figure of $20,000 as the value of her "benefit."

The trial court, in its findings of fact, found that Patricia receives $250 per month "from a Teamsters' Pension/Disability Plan and it would have a present value of approximately $20,000.00."

Doyle maintains that the trial court should have taken into account the fact that Patricia, a 60-year-old woman, has a life expectancy 5 years greater than Doyle, a 62-year-old man. In support of this thesis, Doyle directs our attention to certain "mortality tables" judicially noticed by the trial court at Doyle's request.

Patricia responds that Doyle should be "estopped" from arguing that her "pension" is worth anything other than $20,000, as he "agreed to this figure."

Doyle, as explained above, admitted during his testimony that he adopted Patricia's figure of $20,000 as the value of her benefit (presumably her monthly entitlement to $250). Additionally, Doyle submitted proposed findings of fact and conclusions of law to the trial court. Paragraph 25 of the findings of fact stated, in pertinent part:

"[Patricia's] pension plan has a present value of approximately $20,000...."

We hold that if the trial court erred in fixing $20,000 as the "present value" of Patricia's "Pension/Disability Plan" (an issue we need not attempt to decide), such error was invited by Doyle in (1) adopting that amount during his testimony, and (2) asking the trial court to make a finding to that effect. A party will not be heard to complain on appeal of an alleged error in which, by his own conduct at the trial, he joined or acquiesced. Taylor v. Cleveland, C., C. & St. L. Ry. Co., 333 Mo. 650, 63 S.W.2d 69, 74-75 (1933); Benjamin v. Benjamin, 370 S.W.2d 639, 643 (Mo.App.1963). On appeal, a party is bound by the position he took in the circuit court and will not be heard on a different theory. In re Marriage of Kinnick, 621 S.W.2d 104, 105-06 (Mo.App.1981); In re Marriage of Hunter, 614 S.W.2d 277, 278 (Mo.App.1981).

Additionally, the $250 Patricia receives each month may not even be marital property. In Sherman v. Sherman, 740 S.W.2d 203 (Mo.App.1987), it was held that disability benefits received by a husband pursuant to a policy held by him in an insurance company's long term disability plan were a substitute for his...