Marriage of Myers, In re, 17810

• Decision Date: 10 December 1992
• Docket Number: No. 17810,17810
• Citation: 845 S.W.2d 621
• Court: Missouri Court of Appeals
• Parties: In re the Marriage of: Gayle Lou MYERS and Robert Scott Myers. Gayle Lou MYERS, Petitioner-Respondent, v. Robert Scott MYERS, Respondent-Appellant.

Page 621

845 S.W.2d 621

In re the Marriage of: Gayle Lou MYERS and Robert Scott Myers.

Gayle Lou MYERS, Petitioner-Respondent, v. Robert Scott MYERS, Respondent-Appellant.

No. 17810.

Missouri Court of Appeals,

Southern District,

Division Two.

Dec. 10, 1992.

Motion for Rehearing or Transfer to

Supreme Court Denied

Dec. 31, 1992.

Application to Transfer Denied Feb. 23, 1993.

John A. Clayton, Thomas, Birdsong & Clayton, P.C., Rolla, for petitioner-respondent.

Clifford Schwartz, Schwartz & Ochs, St. Louis, for respondent-appellant.

MAUS, Judge.

The Circuit Court of Phelps County entered a decree dissolving the marriage of Gayle Lou Myers (Wife) and Robert Scott Myers (Husband), on September 13, 1991. The court set aside to each party certain items of separate property and awarded Wife 45% and Husband 55% of the marital property. Husband appeals. The following is a brief background of the case.

Husband is a physician in Rolla, Missouri. Husband and Wife met in January 1984, while Husband was treating Wife for depression. In February they began living together on Husband's farm. In April 1984 Wife began working at Husband's office. They were married August 22, 1986, and separated May 5, 1988. No children were born of this marriage. However, both parties had children from previous marriages.

Besides being a physician, Husband also raised quarter horses prior to the marriage. During the marriage, he and Wife continued this venture. Several horses were purchased and sold. The parties also purchased several vehicles during the marriage.

The court set aside to Husband, as his separate property, several pieces of real estate owned by him prior to the marriage, horses valued at $40,160.00, three vehicles, and other property in his possession. Certain items of personal effects in Husband's possession, valued at $1,925.00, were set apart to Wife as her separate property.

The court found the parties owned, as marital property, the following:

1. One-week time share in Acapulco Plaza Hotel, valued at $7,000.00.

2. Eight vehicles, valued at $47,500.00.

3. One horse trailer, valued at $7,000.00.

4. Horses, valued at $79,200.00.

5. Other items of personal property valued at $24,125.00.

The total value of the marital property was $164,825.00. The court found the parties had marital debts in the amount of $10,528.19.

Husband, as his share of marital property, was awarded the following:

1. One-week time share in Acapulco Plaza Hotel, valued at $7,000.00.

2. Eight vehicles, valued at $47,500.00.

3. One horse trailer, valued at $7,000.00.

4. All horses, valued at $79,200.00, tack, records, sale documents and registration papers.

5. All marital property in his possession not specifically awarded to Wife, valued at $20,150.00.

Wife was awarded, as her share of marital property, the following:

1. All marital property in her possession not specifically awarded to Husband, valued at $3,975.00.

2. The sum of $70,000.00 which Husband was ordered to pay her.

Wife was ordered to pay marital debts in the amount of $1,411.48. Husband was ordered to pay marital debts in the amount of $9,116.71, temporary maintenance of $5,500.00, $3,000.00 towards Wife's attorney's fees, and all court costs. Husband states six points.

The sufficiency of the statement of those points to preserve an issue for review is governed by the following principles:

"The points relied on shall state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous, with citations of authorities thereunder....

Setting out only abstract statements of law without showing how they are related to any action or ruling of the court is not a compliance with this Rule." Rule 84.04(d).

"After stating why the ruling was erroneous, the court then must be informed wherein the testimony or evidence gives rise to the ruling for which appellant contends." Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978). (Emphasis in original.)

"The point fails to state wherein and why the court's rulings are erroneous, a fatal violation of Rule 84.04(d)." Callier v. Callier, 793 S.W.2d 164 (Mo.App.1990).

"Appellant's point fails 'to specify wherein and why the (unspecified) ruling of the trial court was erroneous ... it does not identify any specific ruling complained of and does not give any indication of any point in the trial of the case where the trial court was called upon to take such affirmative action.' Thummel v. King, 570 S.W.2d 679, 685 (Mo. banc 1978). Appellant has not preserved the question for review." Kolocotronis v. Ritterbusch, 667 S.W.2d 430, 434 (Mo.App.1984). (Emphasis and omission in original.)

"It is not enough for the point, as here, via conclusions of claimed error to simply say the trial court was wrong without alluding to some evidence or testimony which gives support to such conclusions. In re Estate of Sifferman, 603 S.W.2d 30, 31 (Mo.App.1980)." Montesano v. James, 655 S.W.2d 137, 139 (Mo.App.1983).

A contention not encompassed in a properly-stated point will not be considered.

"Where appellant fails to raise an issue of alleged error in his points relied on, the issue will be deemed abandoned by the appellate court. State ex rel. Holly Inv. Co. v. Board of Zoning Adjustment, 771 S.W.2d 949, 950-51 (Mo.App.1989); American Lease Plans, Inc. v. Cardin, 558 S.W.2d 325, 328 (Mo.App.1977)." Livingston Manor v. Dept. of Social Serv., 809 S.W.2d 153, 157 (Mo.App.1991).

The principles by which the merit of any issue preserved by the stated points is to be measured include the following:

"In a dissolution of marriage action, the decree or judgment of trial court shall be affirmed, if it could properly have been reached on any reasonable theory, unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies law." Tully v. Tully, 813 S.W.2d 926, 928 (Mo.App.1991).

"Due regard is given to the trial court's determination on the credibility of witnesses. Rule 73.01(c)(2); Looney [v. Estate of Eshleman, 783 S.W.2d 164 (Mo.App.1990) ], 783 S.W.2d at 165. The trial judge is in a better position than this court to determine the credibility of the parties, their sincerity, character and other trial intangibles which may not be shown by the record. In re Marriage of Chilton, 576 S.W.2d 584, 585 (Mo.App.1979). The trial judge, as the trier of fact, can disbelieve testimony even when uncontradicted. Robinson v. Estate of Robinson, 768 S.W.2d 676, 677 (Mo.App.1989)." In re Marriage of Lewis, 808 S.W.2d 919, 922 (Mo.App.1991).

"... All fact issues upon which no specific findings are made shall be considered as having been found in accordance with the result reached." Rule 73.01(a)(2).

"No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action." Rule 84.13(b).

"We are mindful that for error to be reversible, there must be prejudice to the complaining party." DeLaporte v. Robey Bldg. Supply, Inc., 812 S.W.2d 526, 535 (Mo.App.1991).

Husband's first point is:

"The trial court erred in accepting 'in toto' counsel for petitioner's proposed decree. Said decree was not the court's decree. The decree as entered is so contradictory on its face that it fails to comply with basic rules of judicial certainty and finality. The surname of the child involved is listed as Duncan instead of Spurgeon. Properties are listed with incorrect legal descriptions. Respondent is said to have two residences when, in fact and in evidence, only one such residence exists. There is no disposition of non-marital horses. These factual errors show that the court failed to comprehend the factual situation and that its findings as to maintenance, attorney's fees, costs, and division of property are prejudiced and erroneous and must be set aside."

The general and conclusory nature of this point is apparent. The references to typographical or clerical errors in the child's name and in the legal descriptions of property set apart to Husband state no basis for relief. "There may be some inaccuracies in other findings, perhaps contributed to by the slipshod manner in which some evidence was presented to the trial court, but they do not impair the soundness and validity of the trial court's judgment nor do they warrant discussion." Moore v. Beck, 664 S.W.2d 15, 19-20 (Mo.App.1984). The point states no specific action of the court which was prejudicial to Husband. See Kolocotronis v. Ritterbusch, supra. The conclusion the court failed to comprehend the factual situation does not state "wherein and why" the court erred, within the requirement of 84.04(d). The point preserves nothing for review.

Husband's second point is that the court erred in distributing the marital property by awarding Wife $70,000.00 for a twenty-month marriage because the court did not consider the conduct of Wife in committing adultery, living with her paramour and having a child by him. The evidence does establish Wife's misconduct as stated in the point. Section 452.330.1(4) RSMo Cum.Supp.1991 provides that spousal misconduct is a factor to be considered in distributing the marital property. But, it is only one factor, the weight of which is to be determined by the trial court. Hogan v. Hogan, 796 S.W.2d 400 (Mo.App.1990). There was also evidence of Husband's misconduct, the details of which need not be stated. Suffice it to say, the trial court could reasonably find Husband's misconduct was more egregious than that of Wife.

"In this case, there is ample evidence of misconduct on the part of both parties and we cannot say one was more culpable than the other." In re Marriage of Sumner, 777 S.W.2d 267, 274 (Mo.App.1989).

Also see Warner v. Warner, 684 S.W.2d 946 (Mo.App.1985). The record does not establish the trial court did not consider Wife's misconduct....