Marriage of Perkel, In re, 21362
| Decision Date | 10 February 1998 |
| Docket Number | No. 21362,21362 |
| Citation | 963 S.W.2d 445 |
| Parties | In re the MARRIAGE OF Vicki Lorraine PERKEL and Marc Perkel. Vicki Lorraine PERKEL, Respondent, v. Marc PERKEL, Appellant. |
| Court | Missouri Court of Appeals |
Appellant pro se.
James R. Sharp, Wear & Sharp, Springfield, for respondent.
Before GARRISON, P.J., and PREWITT and CROW, JJ.
Marc Perkel appeals from a judgment dissolving his marriage 1 to Vicki Lorraine Perkel.
Marc, 2 appearing pro se, presents a brief which lists nine "Points on Appeal." They bear the following headings: "Division of Property," "Incomplete Order," "Maintenance," "Corporation," "Due Process," "Fraud upon the Court," "Division of Property" (again), "The Trial Was Irregular" and "Attorney's Fees."
Before addressing that segment of Marc's brief, we set forth the principles governing appellate review of decrees 3 of dissolution of marriage.
An appellate court must affirm the decree unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). The appellate court defers to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree and disregarding all contrary evidence and inferences. Id. at 353. That is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988). The appellate court considers only the record made before the trial court. Hubbs v. Hubbs, 870 S.W.2d 901, 906 (Mo.App. S.D.1994). The appellate court does not consider allegations of fact extraneous to the record. First National Bank of Carrollton v. McClure, 666 S.W.2d 434, 436 (Mo.App. W.D.1983).
The facts recited in this opinion are gleaned from the record, viewed as set forth above.
The parties married September 1, 1989; they separated on or about August 11, 1994. The union produced no offspring.
Trial occurred June 24-25, 1996; the trial court filed its judgment August 5, 1996.
Before the parties married, Marc owned a home at 1452 North Clay in Springfield ("the Clay house"). He bought it for $26,000. It was encumbered by a mortgage lien when the parties married. The parties resided there during the marriage, until the separation.
Marc, a computer programmer, was the incorporator of Computer Tyme, Inc. ("CT"), a Missouri corporation formed in 1984. A certified public accountant characterized CT as a "Subchapter S corporation," explaining that for tax purposes "income flows through to the individual shareholders."
Marc testified he is employed as "president and owner" of CT; there are no other shareholders and never were. 4 Marc worked at CT from its inception. Vicki worked there during the marriage, until March 1994.
When the parties married, CT's business was selling and servicing computer hardware. However, according to Marc, CT's hardware sales were declining so he began changing CT's primary business from hardware to software.
Marc avowed he wrote software marketed by CT, and that from 1990 through 1993 his software was "the best menu on the market" for operating large computer networking systems. However, said Marc, sales began declining after 1993 because his software "cannot launch Windows programs." He explained:
In January 1994, the parties bought about eighty acres of land near Fair Grove ("the rural land") for $97,000. To finance the purchase, the parties paid off the lien on the Clay house--about $17,000--with a check from CT. The parties made a $7,000 down payment on the rural land, again with a CT check. The parties financed the $90,000 balance on the rural land with a bank loan, using both the Clay house and the rural land as collateral. At trial, there was evidence that the principal balance on the loan was $80,701.41.
The certified public accountant mentioned earlier agreed with another certified public accountant that the "value" of CT was forty to sixty thousand dollars. Asked whether he agreed, Marc responded, "I would accept that figure."
Appraisals received in evidence showed the Clay house was worth $36,000 and the rural land was worth $117,000.
The trial court calculated Marc's non-marital interest in the Clay house at $12,461.54 the court calculated the parties' marital interest in the Clay house at $23,538.46. 5
The trial court awarded Vicki the rural land and ordered her to pay the bank loan secured by it (and by the Clay house). The difference between the appraised value of the land ($117,000) and the balance on the loan ($80,701.41) is $36,298.59.
The trial court awarded Vicki the "tractors ... and other equipment" on the rural land, together with an "outdoor portable building" situated there. The trial court did not value those items, but there was evidence they were worth, in the aggregate, $10,300.
The trial court awarded Vicki a 1989 Honda automobile. Both parties testified it was "titled" in CT. Marc "assumed" Vicki "would end up with it," and he acknowledged this was "agreeable" with him. The trial court did not value the Honda, but there was evidence it was worth $9,000.
The trial court awarded Vicki a "Color laptop computer NEC." The trial court did not value it, but there was evidence it was worth $4,500. Although there is no precise evidence as to whether it was marital or non-marital property, we infer from the record that it was acquired during the marriage, hence we presume it was marital property. § 452.330.3, RSMo 1994.
The trial court awarded Vicki other personal property, but we decline to lengthen this opinion by listing that property item-by-item. As best this court can determine from the record, the aggregate value of the property referred to in the preceding sentence is relatively insignificant compared to the aggregate value of the property identified in the four preceding paragraphs. 6 The aggregate net value of the property in those four paragraphs is $60,698.59. The trial court classified all such property as marital property.
Besides the debt on the rural land, the trial court assigned Vicki seven other debts but did not specify their respective amounts. There was evidence showing those debts totalled $16,721.75. Deducting that sum from the aggregate net value of marital property awarded Vicki (the $60,698.59 in the preceding paragraph) leaves $43,976.84. We henceforth refer to that figure as "Vicki's net marital share."
The trial court awarded Marc the Clay house. As reported earlier, the court calculated the value of the parties' marital interest in it at $23,538.46. However, as we have seen, the house is encumbered by the lien securing the debt on the rural land ($80,701.41).
The trial court awarded Marc a pickup but did not value it. There was evidence by Vicki that the pickup was worth $10,000; there was evidence by Marc that it was worth $9,000. There was also evidence of a "debt" on the pickup. According to Vicki, the debt was $5,390.60; according to Marc, the debt was $10,000. The trial court assigned the debt to Marc but made no finding as to the amount. Thus, the net value of the pickup--inferably marital property--was anywhere from $4,609.40 to zero.
The trial court awarded Marc a Nissan automobile but did not value it. That may be because this court can find no evidence of value in the record. Marc's brief mentions a "1985 Nissan," but identifies no place where the record yields information about it.
The trial court awarded Marc a grandfather clock but did not value it. There was evidence it was worth $900, and was marital property.
The trial court awarded Marc a "West Plains note receivable" but did not value it. A list of property presented by Vicki at trial valued the note at $25,000. A personal financial statement signed by the parties February 17, 1993, and received in evidence as Petitioner's Exhibit 12 valued an item described as "Notes Receivable West Plains" at $37,606.98. It is inferable that this item is the "West Plains note receivable" awarded Marc and that its unpaid principal balance was reduced from $37,606.98 to $25,000 during the forty months between February 17, 1993, and trial.
The trial court awarded Marc an item described as "Novell network and computer at his residence" but did not value it. There was evidence that this item was worth $7,500, and was marital property.
The trial court awarded Marc all "copyrights and copyrighted material" but did not value it.
The trial court awarded Marc all other "computer hardware, software, components, equipment and supplies," and all shares of stock in CT. The trial court did not value the property identified in this paragraph. For convenience, we henceforth refer to such property as "the CT shares and chattels." 7
The trial court awarded Marc other personal property, but we decline to lengthen this opinion by listing that property item-by-item. As best this court can determine from the record, the aggregate value of the property referred to in the preceding sentence is relatively insignificant compared to the aggregate value of the property identified in the eight preceding paragraphs. The trial court classified all property awarded Marc as marital property except Marc's $12,461.54 non-marital interest in the Clay house.
Besides the debt on the pickup, the trial court ordered Marc to pay all debts of CT and four credit card debts. The court did not specify the amount of any...
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