Marriage of Torix, In re

Decision Date29 October 1993
Docket NumberNo. 17904,17904
Citation863 S.W.2d 935
PartiesIn re the MARRIAGE OF Patricia Mae TORIX and Glen Edward Torix. Patricia Mae TORIX, Petitioner-Appellant, v. Glen Edward TORIX, Respondent-Respondent.
CourtMissouri Court of Appeals

M. Roger Carlin, Evenson, Carlin & LePage, Pineville, for petitioner-appellant.

Phillip A. Glades, P.C., Phillip A. Glades, Anita K. Oakes, Joplin, for respondent-respondent.

GARRISON, Judge.

This is an appeal by Patricia Torix (Wife) from a judgment dissolving her marriage to Glen Torix (Husband), dividing their marital property, and awarding her maintenance.

The parties were married in 1964 when Wife was fourteen years old and was in the seventh grade. Husband was then seventeen and had an eighth grade education. At the time of their marriage, the parties had virtually no assets and initially received welfare. Early in the marriage, Wife worked at two garment factories and later in a bakery which she quit in 1976 to be with their son. 1 Husband worked at various jobs until 1976, when they established the business known as Glen's Diesel. Wife later worked in the office of that business answering the phone, doing clerical work and getting parts until approximately 1981. At that time they took a partner into the business and Wife stayed with their son full time. She was not thereafter employed outside the home.

Later, they started Torix Trucking, which primarily leases trucks to other trucking companies. They also became involved in the ownership of a truck sales business known as TW Trucks. The businesses were successful, and over the years they accumulated substantial assets and began enjoying an expensive lifestyle.

The parties' separation in September 1988 was followed by the filing of Wife's petition for dissolution of marriage the following January. Pursuant to Wife's motion, she was awarded temporary maintenance of $2500 per month. Wife obtained her GED in 1990 but was not employed prior to trial. Trial commenced in April 1991 and continued on various dates until concluded in August 1991.

The trial court divided the marital property as follows: Wife was awarded marital assets which the court found totaled $498,913 but which were subject to encumbrances of $150,200, which she was ordered to pay, leaving a net award of $348,713; and Husband was awarded marital property valued at $707,858 but was ordered to pay indebtedness totaling $388,909 (including $260,000 owed to the IRS for back taxes), resulting in a net award of $318,949. Included in the marital property awarded to Husband was their one-half interest in Glen's Diesel; their one-fourth interest in TW Trucks; and their 100% ownership in Glen Torix Trucking. The trial court also awarded Wife maintenance in the amount of $1000 per month. Wife appeals the division of property and award of maintenance.

Appellate review of a court-tried case is governed by Rule 73.01. 2 Accordingly, the decree or judgment of the trial court will be sustained 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Mistler v. Mistler, 816 S.W.2d 241, 245 (Mo.App.1991). In addition, the evidence is viewed in the light most favorable to the decree, disregarding contrary evidence. Pratt v. Pratt, 813 S.W.2d 389, 390 (Mo.App.1991).

In her first point on this appeal, Wife contends the trial court abused its discretion in dividing the marital property. Her objection is directed to the amount of property awarded to her and the fact that the primary income producing property was awarded to Husband. She does not, however, contest the trial court's findings as to the valuation of the assets divided.

Husband contends that Wife waived any right to complain about the property distribution by reason of her sale and disposal, after judgment, of approximately $280,000 worth of assets. Husband argues that under In re Marriage of Vinson, 839 S.W.2d 38 (Mo.App.1992), and Warren v. Warren, 601 S.W.2d 683 (Mo.App.1980), by disposing of a significant portion of the marital property set aside to her, Wife accepted the benefits of the distribution of marital property and is therefore foreclosed from pursuing this appeal on that issue. 3 The legal file in this case, however, does not contain evidence that Wife disposed of any assets. 4 Therefore, we are unable to decide whether Wife has waived the right to appeal any portion of the judgment entered in this case and will decide the issue presented by Wife on the merits.

Wife's objection to the division of marital property is primarily centered around her argument that the trial court should have considered the nature of the property being divided and should have awarded her either some of the primary income producing property or a greater share of the other marital assets because her earning potential, as opposed to Husband's, is limited, and the mortgage obligations on the property she received exceeds her expected income, thereby requiring her to liquidate some of the property.

Section 452.330 5 requires the trial court to consider "all relevant factors" in dividing marital property including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

The matter of division of marital property is within the sound discretion of the trial court. Bixler v. Bixler, 810 S.W.2d 95, 100 (Mo.App.1991). The specifically enumerated factors listed in § 452.330 are not exclusive and the trial court has great flexibility and far-reaching power in dividing the marital property so as to accommodate the needs of the parties, there being no formula concerning the weight to be given the relevant factors which a court may consider. In re Marriage of Harrison, 657 S.W.2d 366, 370 (Mo.App.1983). Divisions of property must be equitable, not necessarily equal. May v. May, 801 S.W.2d 728, 733 (Mo.App.1990).

Wife argues that the properties awarded to her carry a monthly mortgage obligation of more than $3000, that none of those assets were income producing "to an extent that the asset produced income sufficient to discharge the obligation against it," and she has limited earning potential. In contrast, she points to the fact that Husband was awarded the three businesses which had produced the income which permitted accumulation of all the other assets. Because of these factors, Wife argues that the trial court should have awarded her more of the remaining marital assets. She cites Mueller v. Mueller, 782 S.W.2d 445 (Mo.App.1990), and Mika v. Mika, 728 S.W.2d 280 (Mo.App.1987), for the proposition that the trial court should consider the economic circumstances of the parties, including each party's individual capacity to work and earn. This argument is based upon the premise that the trial court should have, but did not, consider and believe Wife's contention that she was not employable, had no job skills, and had no probability of future employment.

The evidence was that Wife had obtained her GED, was considering furthering her education, and had some general work experience, in addition to some experience working in the office of the family business. Although this evidence did not indicate she had an earning potential which was equivalent to Husband's, it, together with evidence of her good health, indicated Wife was capable of holding some form of employment. The trial court did note, however, that in the three and one-half years since the parties separated, Wife had not been employed and had applied for employment at only two locations. The trial court obviously did consider the earning potential of both parties.

Wife also contends that the division of property should have included a balance between the income and non-income producing property. Divine v. Divine, 752 S.W.2d 76, 79 (Mo.App.1988), and Mika v. Mika, 728 S.W.2d at 284, both indicate that the balance between income and non-income producing property is a factor which should be considered by the trial court. See also Mueller v. Mueller, 782 S.W.2d at 447, and May v. May, 801 S.W.2d at 734. It is, however, merely one of many factors to be considered and does not require the distribution of a disproportionate share of other marital property. Bixler v. Bixler, 810 S.W.2d at 100.

In the instant case, the primary income producing assets were the businesses which were being operated by Husband. There was evidence from which the trial court could conclude that the success of the businesses, and especially Torix Trucking, resulted in large measure from Husband's friendship with executives of companies with whom he did business and would not exist if the businesses were owned or operated by someone else. Division of marital property which is nearly even, with the income producing property going to one of the parties, has been approved as being within the trial court's discretion. Rapp v. Rapp, 789 S.W.2d 148, 152 (Mo.App.1990). In addition, Husband was ordered to pay a federal income tax liability of approximately $260,000 and a state tax liability of approximately $15,000. Marital debts are factors to be considered in establishing a fair division of marital property. Whitworth v. Whitworth, 806 S.W.2d 145, 150 (Mo.App.1991).

Wife argues that she will be required to sell marital assets distributed to her because she does not have the ability to satisfy...

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