Marriage of Strelow, In re, s. 39557
| Decision Date | 10 April 1979 |
| Docket Number | Nos. 39557,39569,s. 39557 |
| Citation | 581 S.W.2d 426 |
| Parties | In re the MARRIAGE OF Rosenel STRELOW, as known as Rosenel H. Bequette, Petitioner, Respondent-Appellant, and Kenneth R. Strelow, Respondent, Appellant-Respondent. |
| Court | Missouri Court of Appeals |
Nicholas E. Gasaway, Florissant, for Rosenel Strelow, petitioner, respondent-appellant.
Margaret M. Nolan, Ann Q. Niederlander and Lloyd E. Eaker by Lloyd E. Eaker, Clayton, for Kenneth Strelow, respondent, appellant-respondent.
Cross appeals were filed on the division of marital property in this dissolution of marriage action. The specific issue is whether the trial court erred in awarding the husband-respondent $6,500 in cash to equalize the property division. Predictably, the husband (Kenneth) claims the award of $6,500 is insufficient, while the wife (Rosenel) asserts it is excessive.
The trial court's judgment is modified and as modified, affirmed.
The parties were married in October of 1973 and separated in December of 1976. Apart from personal items and home furnishings, each brought certain assets to the marriage. Kenneth owned Jan Barry Cleaners (a dry cleaning establishment) and possessed two leased automobiles. The trial court found the value of the assets he contributed to be about $2,000.
Rosenel owned three parcels of property: (1) a house and lot at 9429 Tudor, net value $6,000; (2) a house and lot at 2907 Hilleman Avenue, net value $7,000; and (3) a house and lot at 3324 Calvert Avenue, net value $15,000. The Tudor and Calvert properties were rented before and during the marriage. At the time of trial, the Tudor property rent was $140 per month. In the years 1973-1976, it generated $5,600 in rental income. The Calvert property rented for $315 per month at the time of trial and produced $11,600 in rental income in the years 1973-1976.
Rosenel also owned a 1965 Comet automobile, valued at $300 and had $386 in her savings account. The trial court found she contributed to the marriage assets worth $28,700. As can readily be seen, there was substantial difference in the value of the parties' contributions at the outset of the marriage.
On the day following their marriage, Rosenel and Kenneth purchased a house at 4202 McKibbon Road, in Breckenridge Hills, for $34,500. Kenneth put down $500 earnest money. A note for $5,000 of the $6,784 down payment was signed by the parties and secured by the property at 2907 Hilleman. The remainder of the down payment came from Rosenel's savings and from the parties' joint checking account. Mortgage payments were made during the course of the marriage. Rooms of this house were also rented for $240 per month. At the time of trial, the rent received from the Tudor, Calvert and McKibbon properties totaled $695 per month. (The Hilleman property was sold in August 1974.)
Rosenel was steadily employed throughout the marriage. Kenneth held several different jobs and was sometimes unemployed. Their individual total incomes from wages during the course of the marriage (including Kenneth's unemployment compensation) were approximately equal: $19,661 for Rosenel and $19,960 for Kenneth.
Losses from the dry cleaning business and bad investments, however, off-set the rental income and wages. In the years 1973 through 1976, their investments and business enterprises lost nearly $43,000 which the trial court, in its findings of fact, attributed to Kenneth.
After making detailed findings of fact and conclusions of law, the trial court divided the parties' marital property in the following manner:
To Rosenel Value Found by Court
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1. Real property located at
a. 9429 Tudor $ 6,300 ($10,000 less $3,700 lien)
b. 3324 and 3324-A Calvert 15,000
c. 4202 McKibbon 10,500 ($36,500 less $26,000
mortage)
2. 1975 Cadillac 2,000 ($6,200 less $4,200 lien)
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Total net value $33,800
To Kenneth Value Found by Court
----------- ---------------------
1. Morgan's Arnold Palmer's Cleaners 1 $ 6,500
2. Bear Enterprises, a business unvalued
3. 1977 Ford Van 1,000
4. $6,500 cash from Rosenel 6,500
-------
Total net value $14,000
The $6,500 cash award amounted to a transfer of funds instead of an additional sum. It should not be added twice in computing the total value of the marital property. Thus, the total net value of the parties' marital property is $41,300 and not $47,800. Rosenel really received $27,300 and Kenneth received $14,000.
Kenneth has filed a motion to dismiss Rosenel's appeal because, in his view, her brief fails to comply with Rules 84.04(c) and (d). Rosenel's statement of facts, although not a model of fairness, conciseness and relevancy, is more than adequate to aid the court in consideration of the issues raised and presented on appeal. There was no attempt on counsel's part to distort or misrepresent the facts of the case. See French v. Tri-Continental Leasing Co., 545 S.W.2d 345 (Mo.App.1976).
Two of Rosenel's Points Relied On do violate Rule 84.04[d], in that they merely state abstract principles of law without any indication of what ruling of the trial court is to be reviewed or wherein and why the trial court erred. These points will not be considered on appeal. Thummel v. King, 570 S.W.2d 679 (Mo. banc 1978). Rosenel's claim of error in the division of the marital property is adequately stated and will be discussed along with Kenneth's complaint that he received too little in the trial court's award.
Court-tried cases are reviewed upon both the law and the evidence under Rule 73.01, with due regard given to the trial court's opportunity to judge the credibility of the witnesses. In re Marriage of Carmack, 550 S.W.2d 815, 817 (Mo.App.1977); LoPiccolo v. LoPiccolo, 547 S.W.2d 501 (Mo.App.1977). Under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), the trial court's judgment is to be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. In re Marriage of Carmack, Supra ; Blessing v. Blessing, 539 S.W.2d 699 (Mo.App.1976).
Two other basic rules govern an appellate court's review of an order distributing marital property. The first of these is that § 452.330 (RSMo Cum. Supp.1975) does not require an equal division of the marital property. 2 The statute's emphasis, instead is on a division which is just, fair and equitable under the particular circumstances of the parties. 3 The standard for dividing marital property is flexible; there is no pat mathematical formula or method of division which assures a just distribution. 4
The second rule, a necessary corollary to the first, is that the trial court is vested with considerable discretion in dividing the marital property; "appellate courts will neither scour and nit-pick the record for accounting error nor second-guess the trial court's balance of the equities . . . ." In re Marriage of Schulte, 546 S.W.2d 41, 47 (Mo.App.1977). Before an appellate court will disturb the trial court's division under § 452.330, "it should appear from the record that the trial court erred or abused its discretion in decreeing the division (Citing cases) . . . ." Hilger v. Hilger, 570 S.W.2d 736, 740 (Mo.App.1978). 5
The parties do not challenge the trial court's finding that the Tudor, Calvert and McKibbon properties are marital property. Nor could they, because in June of 1974 Rosenel executed a quit-claim deed by which, for consideration of $1.00, she conveyed the Tudor, Calvert and Hilleman properties, from her name alone, into a joint tenancy with Kenneth. 6 The McKibbon property was acquired subsequent to the marriage and was entitled in both parties' names. § 452.330.3.
Nor do the parties dispute the trial court's authority to order a cash award to one party to achieve a just division when the other spouse receives property not divisible in kind. See, Snider v. Snider, 570 S.W.2d 770 (Mo.App.1978); Gross v. Gross, 557 S.W.2d 448 (Mo.App.1977); Claunch v. Claunch, 525 S.W.2d 788 (Mo.App.1975). Instead, the issue they both raise is whether $6,500 was the proper amount needed to achieve a just distribution. Consideration of the four factors set out in § 452.330 indicates the trial court abused its discretion in setting the cash award at $6,500.
Section 452.330.1 lists four nonexclusive factors to be considered by the trial court in its just division of the marital property: (1) the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker; (2) the value of the property set off to each spouse; (3) the economic circumstances of the parties at the time the division is to become effective; and (4) the conduct of the parties during the marriage.
One of the most important factors in this case, lending support to an unequal distribution, is the contribution of each spouse to the acquisition of the marital property. As noted before, Rosenel contributed assets worth $28,700 to the marriage. Kenneth brought only about $2,000. Rosenel had owned the Tudor property since 1947; she had purchased the Calvert property in 1966 and the Hilleman property in 1969. She thus had made substantial payments on the mortgages before the marriage. The parties made disproportionate initial contributions to the marriage and...
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