Marriage of Ross, In re, WD

• Decision Date: 27 June 1989
• Docket Number: No. WD,WD
• Citation: Marriage of Ross, In re, 772 S.W.2d 890 (Mo. App. 1989)
• Parties: In re The MARRIAGE OF Terry K. ROSS and Sharon M. Ross. Terry K. ROSS, Appellant, v. Sharon M. ROSS, Respondent. 40645.
• Court: Missouri Court of Appeals

Page 890

772 S.W.2d 890

In re The MARRIAGE OF Terry K. ROSS and Sharon M. Ross Terry K. ROSS, Appellant, v.Sharon M. ROSS, Respondent.

No. WD 40645.

Missouri Court of Appeals Western District.

June 27, 1989.

Jean E. Goldstein, Columbia, for appellant.

Louis F. Cottey, Kirksville, for respondent.

Before SHANGLER, P.J., and MANFORD and LOWENSTEIN, JJ.

LOWENSTEIN, Judge.

In this dissolution of the marriage case between Terry Ross(husband) and Sharon Ross(wife), the husband disputes the court's decision as it relates to the award of custody, support payments, the division of property, the award of maintenance, and attorney's fees.

The couple married on August 14, 1965.They separated in October, 1986.They have two children, Christopher, born on November 15, 1971, and Jeremy, born on June 16, 1975.At the time trial, the husband was 44 years old and in good health.He had a B.S. in education and a B.S. in electrical engineering.He had been employed by the Associated Electric Coop Power Division for nine and a half years.He was an electrical maintenance superintendent and his gross salary was $2,007.36 paid bi-weekly ($4,349.28 per month).His projected yearly income for 1988 was $52,191.36, plus a merit increase anticipated at $1,567.74.His employer provides transportation to and from work.

The wife was 41 years old.She had completed 31.5 college hours in a business course and 36 hours of vocational school credits.Throughout the marriage, the wife has held several jobs, including: secretary at the university extension center, a bank teller, a waitress, a receptionist, an employee at a nursery school, and a part time employee at a Macon school.For the two years prior to the judgment, she worked as a learning disability teacher aid in a high school of the Macon School District.Her gross monthly salary is based on a six hour day at $4.25 an hour and when spread out over a year averages $406.01 a month, but she only works nine months a year.The court found that the marriage was "somewhat typical in that wife helped finance a portion of her husband's education, raised the children, and when husband's education or advancement necessitated a geographic move, wife subordinated her job or career to follow her husband."The husband asked for joint legal custody of the children, while the wife demanded sole custody.The husband stated he would maintain health insurance for the children and would remain financially liable for all their medical, hospital, dental and visual needs.The parties stipulated to the value of a majority of the marital property except for the value of the husband's retirement plan and the value of the household goods.

The first point raised by the husband on appeal is that the trial court erred in not awarding joint custody.The award of joint custody is discretionary.Kline v. Kline, 686 S.W.2d 13, 17(Mo.App.1984).The husband, as petitioner for the dissolution, argues that the wife never asked for sole custody and that public policy here dictates the award of joint custody.

The wife in her answer and counterclaim did ask that the court award her the care, custody and control of the minor children, subject to the husband's reasonable rights of visitation.The husband's argument that the wife never asked for sole custody is incorrect.The misunderstanding stems from testimony given by the wife stating she did not object to joint custody.She held the belief that she and her husband saw "eye to eye" on how to raise the children.

Under § 452.375, there is no presumption in favor of joint custody.Joint custody is simply an option.Kline v. Kline, 686 S.W.2d 13, 15(Mo.App.1984).The trial court is vested with broad discretion in determining child custody.In re Marriage of Mihalovich v. Mihalovich, 659 S.W.2d 798, 801(Mo.App.1983).The trial court's findings on matters of custody will be upheld unless the appellate court is convinced that the welfare of the child dictates some other disposition.Davis v. Davis, 693 S.W.2d 879, 883(Mo.App.1985).

S.R. v. S.M.R., 709 S.W.2d 910, 915(Mo.App.1986).The trial court did not abuse its discretion in this case.The husband's right of visitation included one half of major holidays and 30 days in the summer.

The husband bases his public policy argument concerning joint custody on § 452.375.3, RSMo.Supp.1988.That section reads:

The general assembly finds and declares that it is the public policy of this state to assure children frequent and meaningful contact with both parents after the parents have separated or dissolved their marriage, and that it is in the public interest to encourage parents to share decision-making rights and responsibilities of child rearing.In order to effectuate this policy, the court shall determine the custody arrangement which will best assure that the parents share such decision-making responsibility and authority and such frequent and meaningful contact between the child and each parent, as is indicated in the best interest of the children under the relevant circumstances.

Here, that section was not in effect when the petition was filed.Therefore, it is inapplicable to this case.R.E.G. v. E.K.H., 761 S.W.2d 289, 290(Mo.App.1988).Even considering the new subsection, the trial court's order on this subject was not an abuse of discretion.

The husband's second point on appeal concerns valuing and dividing the marital property based on the tax consequences.Proceeds from the sale of stock in the amount of $25,626.00 were given to the husband, and in return he was ordered him to pay his wife $25,358.00 (to equalize the division of property).No taxes were due on that sale for a year.The husband made no estimate on the exact amount of taxes that would be due.

The husband also complains about the types of assets given to him, ie., he could only cash in his Associated Electric retirement account if he left his employment, and the fact he was given the IRA and 401(k) accounts which penalize early withdrawals.

While it is true that the trial court should take tax consequences into account, Butcher v. Butcher, 544 S.W.2d 249(Mo.App.1976), here the parties stipulated to the value of all but one asset, the retirement plan.The court adopted the husband's valuation on this plan.The parties did not stipulate to or present precise evidence as to the tax consequences of the different types of property.Having failed to show the tax consequences, the husband will not now be heard to complain.Taylor v. Taylor, 736 S.W.2d 388, 391(Mo. banc 1987).

The husband also complains in a subpoint about language in the judgment that "certain assets bear individual tax consequences if taken from one spouse and distributed to the other" being an incorrect statement of law.There is no requisite showing of prejudice calling for a reversal.Rule 84.13(b).

The husband's third point on appeal is that the trial court erred in the amount of...