Marriage of Schatz, In re

• Decision Date: 20 March 1989
• Docket Number: No. 15223,15223
• Citation: 768 S.W.2d 607
• Parties: In re the MARRIAGE OF SCHATZ. Charles A. SCHATZ, Jr., Petitioner-Appellant, v. Audrey L. SCHATZ, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 607

768 S.W.2d 607

In re the MARRIAGE OF SCHATZ.

Charles A. SCHATZ, Jr., Petitioner-Appellant, v. Audrey L. SCHATZ, Respondent-Respondent.

No. 15223.

Missouri Court of Appeals,

Southern District,

Division Two.

March 20, 1989.

Motion for Rehearing or Transfer

Denied April 11, 1989.

John R. Lewis, Lewis & Stevens, Springfield, petitioner-appellant.

Stephen L. Shepard, Shepard & Rahmeyer, P.C., Springfield, for respondent-respondent.

HOGAN, Judge.

This is an action for dissolution of marriage. The parties were married for 25 years, became the parents of five children, and by community standards, prospered. The appeal is focussed upon the division of separate and marital property required by § 452.330, RSMo 1986. ¹

Petitioner Charles A. Schatz, Jr., (hereinafter plaintiff) and respondent Audrey L. Schatz (hereinafter defendant) were married for 25 years. Five daughters were born of the marriage, two of whom were emancipated at the time of trial. The younger children, a female age 18 and female twins 13 years of age resided with the defendant. The children were in good health. The trial court awarded principal custody of the three younger children to the defendant and ordered the plaintiff to pay the total sum of $600.00 per month to the defendant as child support. Neither the award of custody nor the allowance for child support is questioned in this court.

At trial time the plaintiff was 50 years of age. He had been employed by the Dayco Corporation since 1959 and had become a "supervisor." Plaintiff's "net" monthly salary from Dayco was $1,828.66. He was also employed as a municipal judge by the City of Republic, Missouri. As a judge, the defendant's "net" monthly earnings were $371.52 per month. The trial court found as a fact that the plaintiff earned $32,838.07 in 1983, $34,360.00 in 1984 and $34,821.00 in 1985. The plaintiff is in good health. He is a high school graduate who has some college education.

The defendant was 46 years old at trial time. She testified that she had a bachelor of science degree and a master's degree in guidance and counselling. Defendant also had what counsel described as "librarian certification." The trial court found the defendant was employed by the Spokane School District as a guidance counsellor and that she earned "over" $15,000.00 annually. The defendant testified she earned $15,600.00 annually. The defendant was in good health.

The parties' property has been listed, valued and divided in detail so meticulous as to be reminiscent of the bankruptcy courts. The property set apart to the plaintiff and defendant was described in three schedules attached to the court's findings of fact as Appendices "A," "B" and "C." It is not necessary to reproduce, only to summarize those schedules.

1. Appendix "A" sets forth the separate, nonmarital property awarded to the plaintiff. Plaintiff's separate property consisted of a 139-acre farm together with a dwelling and all improvements located thereon. This farm was valued at $131,500.00; $23,700.00 of this figure represented an increase in value attributable to marital contributions. The total value of the farm as an item of separate property was, therefore $107,800.00.

2. Appendix "B" shows the marital property awarded to the plaintiff, Charles A. Schatz, Jr. The property falls into seven categories:

A. Real property--the increase in value of the 139"acre farm, $ 23,700.00

valued at

B. Stocks, Bonds, Notes, Pensions and Profit"Sharing plans valued 34,434.44

at

C. Motor Vehicles valued at 7,550.00

D. 16 items of farm equipment, valued at 13,782.50

E. 12 life insurance policies which have a total cash value of 14,279.85

F. Bank accounts in the amount of 5,452.05

G. Miscellaneous property (44 items) valued at 9,237.19

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$108,436.03 The value of the marital property assigned to the plaintiff is $108,436.03. Plaintiff assumed marital debts in the amount of $1,635.84. Plaintiff therefore received marital property valued at $106,800.19.

3. Appendix "C" shows the marital property assigned to the defendant. Six types of property and property rights are listed:

A. Real property--the family residence located at Republic, $ 65,000.00

Missouri, valued at

B. Stocks, Bonds, Notes, Pensions and Profit"Sharing plans valued 22,435.40

at

C. One motor vehicle valued at 7,250.00

D. A life insurance policy having a cash value of 1,879.00

E. Bank accounts valued at 1,269.23

F. Household goods, furniture and appliances valued at 9,088.25

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$106,921.88

The total amount of marital property awarded to the defendant, by our calculation, was $106,921.88.

The trial court also made two awards of maintenance. Plaintiff was ordered to pay the defendant the sum of $100.00 per month as "periodic, decretal" maintenance, and was further ordered to pay defendant the sum of $7,500.00 as maintenance in gross. Such is the general background of the case as material on appeal. The defendant has filed a motion to dismiss the appeal on the ground that it is moot. The motion was ordered taken with the case. The motion to dismiss is based on mistaken notions of law and is denied.

The first two points have to do with the valuation and award of the 139-acre farm. The trial court found that although the farm was separate, nonmarital property to which the plaintiff was entitled, "there was an increase in value of said separate, non-marital property due to marital contributions which have a present value of $23,700.00." In distributing the property, the court accepted the plaintiff's valuation of the farm and the defendant's evidence of the value of the marital contribution. In this court, plaintiff contends: 1) that the trial court erred and abused its discretion in finding that the increase in the value of the farm was marital property and in distributing the increase in value as a marital asset; and 2) the trial court erred in permitting the defendant to give her opinion testimony as to the increase in the value of the farm because she was not an owner of the farm or otherwise qualified to testify to its value.

As shown by plaintiff's exhibit 5, the 139-acre farm was deeded to the plaintiff by his parents in December 1969 subject to a life estate in the grantors, who are now deceased. The farm consists of two separate tracts, one of which has been improved. An appraiser, apparently employed by the plaintiff, valued the farm at $131,500.00 and the trial court accepted this appraisal. The defendant gave as her opinion that the fair market value of the farm was $99,500.00, and that $37,800.00 of that amount represented an increase in value since 1969. The defendant supported her testimony with an exhibit, designated respondent's exhibit "X," which has not been included in the record.

The plaintiff vigorously argues that the defendant was not qualified to testify to the value of the farm nor to the increase in value which represented marital contribution because she was neither an owner nor otherwise qualified. In his brief, the attorney for the plaintiff here quoted part of the record which, standing alone, would indicate that the defendant was not familiar with land in the area where the farm is located. Nevertheless the record, taken as a whole, warrants the conclusion that the defendant was familiar with the farm and the improvements located on it as well as other real property in the area and that during her marriage to the plaintiff she had become familiar with farming operations and the value of farm land generally.

Our courts have held that a witness may testify to land values even though the witness is neither an owner nor an expert, In re Estate of Dennis, 714 S.W.2d 661, 666 (Mo.App.1986); In re Marriage of Barr, 579 S.W.2d 833, 836 (Mo.App.1979), and have consistently adhered to the standard set down by our Supreme Court in State ex rel. State Highway Commission v. Barron, 400 S.W.2d 33, 36-37 (1966), thus:

" 'There is no exact rule by which the qualification of a witness to testify as to the value of land can be measured....

One need not be an "expert," in the sense that word is ordinarily used, to testify as to the value of land. If the witness knows or has inspected the property, and if he has such information, knowledge, and skill which enable him to form an intelligent judgment, and if this knowledge and information is superior to that possessed by the ordinary person who composes the jury, then he should be permitted to testify. Beyond that any deficiency he may have goes to the weight of his testimony, not to [his] qualification....' "

See also State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d 20, 23-25 (Mo.App.1964). As this court there stated, the qualification of one standing in the role of an expert is a preliminary question and is largely a question for the trial court whose exercise of discretion will not ordinarily be disturbed on appeal unless that discretion has been abused or exercised in clear error of law. State ex rel. State Highway Commission v. Bloomfield Tractor Sales, Inc., 381 S.W.2d at 25. The opinion might be expanded to demonstrate the basis for our conclusion, but quotation of long excerpts from the record is unnecessary. We find neither an abuse of discretion nor any clear error of law in permitting the defendant to testify to the value of the farm, including an appreciation in value.

The plaintiff's second assignment is related to the first. As briefed and stated, his second assignment of error is that "the trial court erred and abused its discretion by its finding that the increase in value of the non-marital property is itself marital property and assessed the marital property as an asset of the appellant in division of marital property." When one looks to the substance of this point, it seems to be that there was no evidence to support a finding that the farm appreciated in value between 1969 and the date of the decree as a result of a...