Marriage of Mihalovich, In re, WD

• Decision Date: 18 October 1983
• Docket Number: No. WD,WD
• Citation: 659 S.W.2d 798
• Parties: In re the MARRIAGE OF Verlee G. MIHALOVICH and William Joseph Mihalovich. Verlee G. MIHALOVICH, Petitioner-Appellant, v. William Joseph MIHALOVICH, Respondent-Respondent. 34497.
• Court: Missouri Court of Appeals

Page 798

659 S.W.2d 798

In re the MARRIAGE OF Verlee G. MIHALOVICH and William Joseph Mihalovich Verlee G. MIHALOVICH, Petitioner-Appellant, v. William Joseph MIHALOVICH, Respondent-Respondent.

No. WD 34497.

Missouri Court of Appeals Western District.

Oct. 18, 1983.

Vance R. Frick, Kirksville, for petitioner-appellant.

William D. Farrar, Roberts & Farrar, Kirksville, for respondent-respondent.

Before CLARK, P.J., and KENNEDY and LOWENSTEIN, JJ.

CLARK, Presiding Judge.

In this appeal from a dissolution of marriage decree the wife contends the trial court erred in the division of marital property and also erred in custody placement of the children. We affirm in part, reverse in part and remand the case for further proceedings.

The parties were married in April, 1968 and separated in March, 1981. Three children were born, Darrin, Dusti and Nicola aged 12, 10 and 2 respectively as of the date of trial. The decree awarded custody of Darrin to the husband and custody of the other two children to the wife. Some marital assets consisting of personal property valued at approximately $15,000.00 were divided in the ratio of one-fourth to the wife and three-fourths to the husband. Under the unique circumstances of this case, the wife being unemployed outside the home and the husband being unemployed and effectively unemployable, no orders were made for maintenance or child support. No issue is taken on this appeal with the finding that the marriage was irretrievably broken or with the absence of support orders.

The interest which the parties owned in certain real estate was not valued and as will hereafter appear, that interest represented the greatest proportion of the marital property subject to division. The first issue, the wife's claim of an unjust and inequitable division of property, requires discussion of this unvalued and partially omitted marital asset.

Prior to the summer of 1980, the parties operated an 80 acre family farm which they owned in Adair County. Mortgage debts against the real estate consisted of three notes, each secured by deed of trust, with a total principal balance of approximately $46,000.00. In June, 1980, the husband suffered an injury to his cervical back. The circumstances of the accident do not appear in this record but the result was a permanent disability consisting of paralysis below the chest level. The husband is confined to a wheelchair and requires assistance for even minimum activity. His total income consists of $521.00 in monthly social security payments.

In September, 1980 before the parties separated and apparently without contemplation of the breakdown of the marriage, the wife's parents, Clarence and Leola Lipper, entered into an arrangement with the parties to relieve them of the mortgage payment obligations on the 80 acre farm. The terms were set out in a document filed of record and titled "Contract and Lease Agreement." In return for conveyance to them of the farm, the Lippers assumed the outstanding mortgage debt and granted to the Mihalovichs a lease of the house "and surrounding grounds" rent free for a term of fifty years. Not mentioned in the contract but set out in another document signed and placed of record was an option granting an irrevocable right to the Mihalovichs to repurchase the farm during a like period of fifty years for the price of the mortgage debts assumed by the Lippers as such balances stood in September, 1980. The contract expressly defined the fair rental value of the house to be $200.00 per month.

By its dissolution decree, the trial court set off to the wife numerous items of household goods, some cash and concluded by assigning to her the rights of the parties under the contract with the Lippers. Each of the other assets was meticulously valued but no figure appears opposite the listing of the Lipper contract. In their briefs the parties disagree as to the significance of this value omission, the wife contending the rent free lease was of no value and the husband arguing that the benefit was worth at least $120,000.00 based on a monthly rental of $200.00.

The decree makes no mention of the repurchase option. Although it was undoubtedly a component of the transaction which vested the fee estate in the Lippers, the contract which set forth the terms of sale includes no reference to an option. The decree may therefore not be construed as setting off the option to the wife as an incident of the "Contract and Lease Agreement." Indeed, the wife concedes as much when she argues that the rent free lease is valueless because subject to peremptory termination if the option is exercised.

In addition the documentation of the option, as well as the contract, pose various questions of interpretation by reason of awkward and confusing language. For example, the option is stated to be irrevocable for a period of fifty years or "upon the death of the longest (sic) survivor of William J. Mihalovich or Verlee Mihalovich, whichever first occurs." The option is stated to be vested in both the husband and the wife, but is exercisable by either, subject to the condition that if both exercise the option, "said lands must be conveyed to them in equal interests." There is no restriction in either the contract providing the rent free lease or the option precluding sale and assignment of the parties' interests but, to the contrary, both include the statement that the agreements are binding on heirs, successors and assigns.

As this court has repeatedly held commencing with Corder v. Corder, 546 S.W.2d 798 (Mo.App.1977) and continuing through Fields v. Fields, 584 S.W.2d 163 (Mo.App.1979), Glascock v. Glascock, 607 S.W.2d 834 (Mo.App.1980) and Potter v. Potter, 621 S.W.2d 123 (Mo.App.1981), the direction of §...