Marriage of Vanet, In re, s. KCD
| Decision Date | 12 October 1976 |
| Docket Number | Nos. KCD,s. KCD |
| Citation | 544 S.W.2d 236 |
| Parties | In re the MARRIAGE OF M. Randall VANET, Appellant, and Charlotte W. Vanet, Respondent. In re M. Randall VANET, Petitioner. M. Randall VANET, Appellant, v. Charlotte W. VANET, Respondent. 27751, KCD 28396 and KCD 28606. |
| Court | Missouri Court of Appeals |
Max W. Foust, Morris, Foust, Beckett & Ponick, Kansas City, for appellants.
Thomas D. Cochran, Piedimonte & Cochran, Independence, William V. North, Cooke, North, Dickson & Bornholdt, Chartered, Prairie Village, for respondent in 27751.
Ralph L. Martin, Pros. Atty. by Robert Frager, Asst. Pros. Atty., Kansas City, for respondent in 28606 & 28396.
Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.
Three cases have been consolidated for appellate review. A brief description of each reveals a common thread running through then which prompted consolidation. No. KCD 27751 is an appeal in a dissolution of marriage proceeding wherein the husband challenges the decree entered by the trial court with respect to the division of marital property, the amounts awarded to the wife for maintenance and child support, and the allowance of attorney fees to the wife. No. KCD 28396 is a habeas corpus proceeding initiated by the husband to obtain his release from confinement in the Jackson County Jail pursuant to a judgment finding him guilty of 'indirect criminal contempt' for failure to comply with the decree entered in the dissolution of marriage proceeding regarding payment of maintenance and child support. No. KCD 28606 is a direct appeal by the husband from the judgment finding him guilty of 'indirect criminal contempt' for failure to comply with the decree entered in the dissolution of marriage proceeding regarding payment of maintenance and child support.
The cases will be addressed in numerical order and relevant facts will be interspersed throughout subsequent discussions touching the various issues raised.
The husband presses for modification of the decree entered in the dissolution of marriage proceeding on three grounds: (1) the division of marital property was inequitable and violative of the guidelines set forth in Section 452.330, RSMo Supp.1973; (2) the amounts awarded to the wife for maintenance and child support were erroneously based on the husband's prior and anticipated earning capacity and excluded consideration of the wife's 'earning capacity'; and (3) the allowance of attorney fees to the wife was unwarranted in view of the division of marital property, and otherwise unsupported by the evidence.
The marriage was consummated approximately twenty-one years prior to its dissolution. Three minor children are involved, ages eleven, nine, and five, respectively. The wife was awarded custody of the minor children. The husband is a lawyer. Since 1963 the wife has filled the role of mother and homemaker. Prior to 1963 she worked as a secretary. Her secretarial skills consisted of typing and transcribing from recording devices. The decree below divided the marital property between the husband and wife as follows:
WIFE HUSBAND
Family home - fair market Undivided half interest in
value of equity .......... $44,362.50 thirty-seven acres of
unimproved land in Platte
County - fair market value
of equity ................... $31,267.78
Stocks - fair market Stocks - fair market
value ......................... 66.25 value ........................... 772.50
1969 Buick Station Wagon 1973 Corvette - fair
fair market value .......... 1,150.00 market value of equity ........ 2,909.36
Household furniture and Office furniture and
appliances - fair market apartment furniture -
value ...................... 7,000.00 fair market value ............. 2,500.00 Based on the above values the wife's share of the marital property totaled $52,578.75 and the husband's share of the marital property totaled $37,449.64. Percentagewise the wife was awarded approximately 58% of the marital property and the husband approximately 42%. The husband contends that this disparate division of marital property was further compounded by the fact that he was saddled with approximately $18,695.07 in debts (exclusive of indebtedness against the undivided one-half interest in the thirty-seven acres of unimproved land in Platte County), which, in reality, effectively shrunk his share of the marital property percentagewise to approximately 26% and increased the wife's share percentagewise to approximately 74%.
The extent of a trial court's power to divide marital property in a dissolution of marriage proceeding is not totally unbridled. To the contrary, the extent of a trial court's power to divide marital property is circumscribed by paragraph 1 of Section 452.330, RSMo Supp.1973, which provides that the trial court '. . . shall divide the marital property in such proportions as the court deems just after considering all relevant factors including: (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (2) The value of the property set apart to each spouse; (3) 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; and (4) The conduct of the parties during the marriage.' Paragraph 1 of Section 452.330, supra, however does not command parity in the division of marital property, nor does it mandate that it be done with mathematical nicety by means of a stereotyped mathematical formula. If such was intended, it would have been an easy drafting task for the legislature to have said that marital property shall be divided equally between the spouses. The legislature in its wisdom obviously saw fit to vest trial courts with broad discretionary power in determining the respective portions of the spouses when making a division of marital property.
It is also significant that the legislature voiced a proper concern for the welfare of minor children of a marriage with respect to the division of marital property--the 'desirability' of awarding the 'family home to the spouse (in this instance the wife) having custody of any children' being a relevant factor for consideration in dividing the marital property. Subparagraph (3) of paragraph 1 of Section 452.330, supra. In light of the desirability of awarding the family home to the spouse having custody of any children, in this instance the wife, the division of marital property takes on a different complexion. Any tone of disparity seemingly cast by the division is further mellowed by the nature and value of the remainder of the marital property which the wife received--stocks valued at $66.25, a six year old Buick station wagon valued at $1,150.00, and household furniture and appliances valued at $7,000.00, with a total fair market value of $8,216.25. On the other hand the decree entered by the trial court set over marital property to the husband having a fair market value of $37,449.64. Except for stock having a fair market value of $66.25, the remainder of the marital property set over to the wife, to-wit, the family home, the six year old Buick station wagon and the furniture and appliances, usewise inured to the benefit of the children of the marriage as well as to the wife.
The proportionate share to be set over to each spouse in the division of marital property is a matter peculiarly within the discretion of the trial court in view of the statutory language of paragraph 1 of Section 452.330, supra, as judicially construed in this state, and will not be disturbed on appeal absent a showing of an abuse of discretion. In re Marriage of Powers, 527 S.W.2d 949, 951 (Mo.App.1975); Conrad v. Bowers, 533 S.W.2d 614, 623 (Mo.App.1975), and Murray v. Murray, 538 S.W.2d 587, 588 (Mo.App.1976). This court does not mean to imply that the 'desirability' of awarding the family home to the spouse having custody of minor children is an island in and of itself, to the exclusion of all other relevant factors for determining a 'just' division of marital property. However, in view of the particular facts of this case, the trial court's obvious consideration of this statutorily recognized 'relevant factor' in determining a 'just' division of the marital property insulates its decree from being castigated as an abuse of discretion. Moreover, other relevant factors statutorily prescribed in subparagraphs (1), (2), (3), and (4) of paragraph 1 of Section 452.330, supra, to be considered in determining a 'just' division of marital property--the contributions of the respective spouses to the acquisition of such property, including the wife's contribution as a 'homemaker', the value of any non-marital property set apart to either spouse, the economic circumstances of each spouse at the time the marital property is divided, and the 'conduct' of the spouses 'during the marriage'--bespeak of a 'just' division of marital property in this case rather than an 'unjust' or 'inequitable' division.
The record discloses that the wife was the principal 'breadwinner' after the marriage while the husband completed his legal education and that she continued working and contributed to the family income until the advent of the first child in 1963. The financial contribution made by the wife towards the husband's legal education was of inestimable value with respect to acquisition of the marital property. The non-marital property set apart to the wife, stocks having a value of $2,148.00 which were purchased with a small inheritance which she received, is of nominal value in view of today's rampant inflation. The 'economic circumstances' of the wife at the time the marital property was divided were far less desirable than were those of the husband since he possessed the earning...
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