Marriage of Swofford, In re, 17959

• Decision Date: 20 August 1992
• Docket Number: No. 17959,17959
• Citation: 837 S.W.2d 560
• Parties: In re the MARRIAGE OF Shirley A. Swofford and Kenneth W. SWOFFORD. Shirley A. SWOFFORD, Appellant, v. Kenneth W. SWOFFORD, Respondent.
• Court: Missouri Court of Appeals

Page 560

837 S.W.2d 560

In re the MARRIAGE OF Shirley A. Swofford and Kenneth W. SWOFFORD.

Shirley A. SWOFFORD, Appellant, v. Kenneth W. SWOFFORD, Respondent.

No. 17959.

Missouri Court of Appeals,

Southern District,

Division One.

Aug. 20, 1992.

Rehearing Denied Sept. 8, 1992.

Randee S. Stemmons, Stemmons, Stemmons & Cowherd, Mt. Vernon, for appellant.

John A. Woodard, Clapper & Woodard, Monett, for respondent.

CROW, Presiding Judge.

Appellant, Shirley A. Swofford, brings this appeal from a decree dissolving her marriage to Respondent, Kenneth W. Swofford. Among the six points relied on in Appellant's brief are three which read:

III

The trial court erred in dividing the marital property for the reasons that the valuations attributed to the marital assets were against the weight of the evidence.

IV

The trial court erred in failing to completely divide the marital property for the reason that certain items of marital property in evidence were not awarded to either party.

V

The trial court erred in finding that Appellant did not own non-marital property and distributing Appellant's non-marital property as marital assets for the reason that property acquired by gift is statutorily excluded from marital property.

Rule 84.04(d) ¹ reads, in pertinent part:

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....

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.

The purpose of the rule and the necessity of obeying it are fully discussed in the leading case of Thummel v. King, 570 S.W.2d 679, 684-88 (Mo. banc 1978).

Appellant's point III supplies no hint as to wherein and why the valuations attributed to the marital assets by the trial court were against the weight of the evidence, nor does the point identify the assets allegedly misvalued.

In Best v. Culhane, 677 S.W.2d 390 (Mo.App.1984), a point relied on stated "no substantial evidence supports the judgment ... and the judgment is against the weight of the evidence." Id. at 394. The Eastern District of this Court held the point preserved nothing for review in that it failed to state wherein and why there was no substantial evidence to support the judgment or wherein and why the judgment was against the weight of the evidence. Id. Accord: Tripp v. Harryman, 613 S.W.2d 943, 950 (Mo.App.1981).

Appellant's point III suffers the same fatal defect and consequently presents nothing for review.

Points IV and V are similarly flawed. The former yields no clue as to the items of marital property that were not awarded or the party who should have received them; the latter provides no inkling as to wherein and why the trial court mistakenly found Appellant did not own non-marital property and no identity of the non-marital property allegedly distributed by the court as marital assets. The points thus present nothing for review. Thummel, 570 S.W.2d at 684-85; In re Marriage of McCoy, 818 S.W.2d 322, 324-25 (Mo.App.1991).

Gratuitous examination of the record for plain error per Rule 84.13(c) reveals no manifest injustice or miscarriage of justice in the trial court's disposition of the property.

We next address point VI wherein Appellant complains that the trial court erred in barring Appellant's "expert appraiser" from testifying. Respondent, by timely objection at trial, maintained the appraiser should be excluded because her identity had not been disclosed by Appellant in answering Respondent's interrogatories.

Appellant asserts the appraiser should have been allowed to testify in that Respondent had learned, while taking Appellant's deposition three months before trial, that the appraiser had made an appraisal of one of the tracts of marital real estate.

Nowhere in Appellant's brief are we guided to anyplace in the transcript where an offer of proof may be found regarding the testimony the appraiser would have presented. We have scrutinized the transcript, but have uncovered no such offer.

Subject to a narrow exception inapplicable here, appellate courts will not review excluded evidence without a specific and definite offer of proof. Frank v. Environmental Sanitation Management, Inc., 687 S.W.2d 876, 883-84 (Mo. banc 1985). Accordingly, we hold Appellant's point VI is ineligible for review.

We turn now to point I, which assigns error in the trial court's denial of Appellant's prayer for maintenance. On this subject, we note that at time of trial (September 19, 1991), Appellant was 52 years of age ² and had been married to Respondent since February 14, 1960.

In reviewing the denial of maintenance, we are mindful that where, as here, the trial court made no findings of fact pertinent to that issue, all facts are deemed found in accordance with the result reached. Rule 73.01(a)(2); Stratton v. Stratton, 694 S.W.2d 510, 512 (Mo.App.1985); Irwin v. Irwin, 678 S.W.2d 861, 862 (Mo.App.1984). Accordingly, we accept as true the evidence and inferences from it favorable to the trial court's decree and disregard contrary evidence. T.B.G. v. C.A.G., 772 S.W.2d 653, 654 (Mo. banc 1989).

We begin our consideration of the maintenance question by taking account of the marital property awarded Appellant. She received one parcel of real estate, referred to in the record as a 35-acre tract. The trial court found the fair market value of the tract is $43,750 and it is subject to a lien securing a $13,170.30 debt. While it appears from the decree that Respondent is supposed to pay the debt, the decree sets forth no details about such duty or the consequences of breaching it. There was no evidence the tract is income-producing.

The second item of marital property awarded Appellant is referred to in the record as the "Bonnini" note. Although the evidence regarding it is sparse, we gather the parties bought a 10-acre tract for $22,000, and later sold it for $32,000. Inferably, the sale was by contract for deed, as Respondent testified he still pays $221.96 per month on the tract and receives $225 per month from the buyer. The trial court found the buyer owes the parties $29,135.36, and the parties owe $20,152 to the individual from whom they bought the tract. The trial court awarded this asset to Appellant, but ordered her to pay the debt.

The third item of marital property awarded Appellant was a 1988 Cadillac, valued by the trial court at $19,000. The testimony indicates the vehicle is subject to a lien securing a $15,259.60 debt. The decree indicates Appellant is supposed to pay the debt, and she says so in her brief.

Appellant was also awarded furniture, household goods, jewelry, cooking utensils and linens.

The trial court found the net value of the marital property awarded Appellant was $68,100, and the net value of the marital property awarded Respondent was $110,400, the difference being $42,300. The trial court further found there should be a "substantially equal division of property." To equalize the division, the trial court awarded Appellant "judgment" against Respondent for $21,150.

The parties' marital home was situated on a 72-acre tract owned by them, lien-free. Before separating in October, 1990, they operated a dairy farm there. Respondent remained on the property after the separation and continued the dairy operation. The trial court awarded the tract to Respondent, together with the dairy herd and farm equipment.

Before the breakup, Appellant helped with the milking and chores, but was not otherwise employed until she leased, and began operating, the "East Purdy Store" in February, 1990. This venture failed, as evidenced by a $56,158 loss shown by the parties on their 1990 income tax return. Appellant closed the store March 1, 1991. At trial, she testified the property owner owes her $3,000 for the inventory, which he will pay when he sells the property.

Nine weeks before trial, Appellant opened a restaurant. She testified, and Respondent concedes, the restaurant was not showing a profit at time of trial.

In addition to operating the dairy farm, Respondent is employed by Burlington Northern Railroad. The parties' 1990 income tax return shows he earned $29,016 wages that year. The document also shows $16,373 in farm income that year.

Section 452.335.1 ³ reads:

In a proceeding for ... dissolution of marriage ... the court may grant a maintenance order ... only if it finds that the spouse seeking maintenance:

(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and

(2) Is unable to support himself through appropriate employment....

A trial court's determination on the allowance of maintenance is discretionary; appellate review is to determine only if discretion was abused. In re Marriage of Lewis, 808 S.W.2d 919, 924 (Mo.App.1991); Lowrey v. Lowrey, 633 S.W.2d 157, 160 (Mo.App.1982). However, if an appellate court finds the trial court abused its discretion, the appellate court is obligated to enter the judgment the trial court should have entered. In re Marriage of Runez, 666 S.W.2d 430, 433 (Mo.App.1983); Tygett v. Tygett, 639 S.W.2d 282, 285 (Mo.App.1982).

When the parties separated, Appellant moved into an apartment, where she was still residing at time of trial. The uncontradicted evidence was that her rent is $205 per month. Her utility expenses, viewed favorably to Respondent, are $100 per month. The monthly payment on the Cadillac which the decree requires her to pay is $364.56. Her monthly expenses also include automobile insurance, groceries, clothing and medical care.

To open the restaurant she was operating at time of trial, Appellant had to buy fixtures and furniture. She obtained part of the funds for them by canceling her life insurance. She also used her share of the parties' income tax refund. She still owed some $8,000 on these items at...