Marriage of Wright, In re, 22565

Decision Date12 May 1999
Docket NumberNo. 22565,22565
Citation990 S.W.2d 703
PartiesIn re the MARRIAGE OF Patricia A. WRIGHT and James D. Wright. Patricia A. Wright, Respondent, v. James D. Wright, Appellant.
CourtMissouri Court of Appeals

Robert P. Warden, Christopher S. Warden, Joplin, for appellant.

Gayle L. Crane, Law Offices of Sotta and Crane, P.C., Joplin, for respondent.

CROW, Judge.

James D. Wright ("J.D.") 1 appeals from a judgment dissolving his marriage to Patricia A. Wright ("Pat"). 2 The first of J. D.'s two points relied on avers the trial court erred in valuing J. D.'s "retirement fund" at $422,338.14. J. D.'s second point maintains the improper valuation resulted in an unjust division of the marital property.

J.D. (born October 1 1938) married Pat (born September 19, 1943) on October 7, 1983. At that time, J.D. was employed by the "Jackson [Mississippi] Fire Department."

Pat, a registered nurse, was employed as a surgical assistant by a neurosurgeon in Jackson before the marriage. After the marriage, Pat went to work at a Jackson hospital.

J.D. was injured fighting a fire in 1986. He retired in 1990 after 29 years and 10 months at the fire department.

J.D. and Pat moved to Joplin, Missouri, in 1991. At time of trial (December 29 1997), Pat was Director of Surgical Services at St. John's Regional Medical Center in Joplin, where she had worked since July 4, 1991.

The issue about the value of J. D.'s "retirement fund" has a curious history.

J. D.'s brief avers that one of the "local court rules" requires the parties in a dissolution action to file a "DR Form 1" before the case will be set for trial.

The record contains a DR Form 1 filed by Pat on March 19, 1997. That document, comprising nine pages, is henceforth referred to as "Pat's DR 1." Page 8 of Pat's DR 1 is denominated "NON-MARITAL PROPERTY--HUSBAND." One of the entries on that page shows an asset identified as "City of Jackson-Mon." with a "Present Value" of "1,710.84."

The record also contains a DR Form 1 filed by J.D. on July 10, 1997. That document, comprising eleven pages, is henceforth referred to as "J. D.'s DR 1." Page 10 of J. D.'s DR 1 is denominated "HUSBAND'S NON-MARITAL PROPERTY." One of the entries on that page shows an asset identified as "City of Jackson, monthly" with a "Present Value" of "1,713.84." 3

At trial, Pat (the petitioner) presented her evidence first. The first witness called by Pat's lawyer was J. D.

Under questioning by Pat's lawyer, J.D. testified his "gross [retirement] pay" is $2,124.01 per month. As this court comprehends J. D.'s testimony, $247.17 is deducted from his "gross pay" each month for "health insurance and life insurance." Evidently, taxes are also withheld, leaving J.D. "$1,713.84 a month net." 4

After Pat's lawyer examined J. D., J. D.'s lawyer questioned J.D. During that segment of J. D.'s testimony, J. D.'s lawyer handed J.D. an eleven-page document marked Petitioner's Exhibit 1 ("Exhibit 1"). 5

Exhibit 1 appears to be a photocopy of J. D.'s DR 1. 6 However, there are handwritten entries on Exhibit 1 that do not appear on J. D.'s DR 1. 7

On page 8 of Exhibit 1 is a printed heading denominated "Retirement and Pension." Beneath that heading is the following typewritten entry: "See non-martial husband." That segment of page 8 of Exhibit 1 is identical to the corresponding segment of page 8 on J. D.'s DR 1.

However, immediately beneath the above-quoted typewritten entry on page 8 of Exhibit 1 is a handwritten entry that appears to read:

"Fire Department 2,124.01 mth


This opinion henceforth refers to the above-quoted handwritten entry as "the Disputed Entry." No such entry appears on page 8 of J. D.'s DR 1 (or, for that matter, anywhere on Pat's DR 1).

When J. D.'s lawyer handed Exhibit 1 to J. D., this dialogue ensued:

"[J. D.'s lawyer]: Let me ask you some questions about ... Petitioner's Exhibit # 1. Has this been admitted, Your Honor?

[Pat's lawyer]: No.

[J. D.'s lawyer]: It has not been offered?


[J. D.'s lawyer]: Your Honor, I'd offer Petitioner's Exhibit # 1.

[Pat's lawyer]: No objection.

BY THE COURT: Exhibit # 1 is admitted."

J. D.'s lawyer then questioned J.D. about numerous entries on Exhibit 1 including two typewritten entries on page 8 regarding life insurance. The second of those entries is seven lines above the Disputed Entry. J. D.'s lawyer asked J.D. nothing about the Disputed Entry. 8

On February 17, 1998 (seven weeks after trial), the trial court made a comprehensive entry on the docket sheet setting forth the court's findings and conclusions, including this:

"[T]he Court finds that [Pat's] St. John's retirement benefit is marital property as is at least 7/29ths of [J. D.'s] retirement benefit. The computation as to its total value, said by [Pat] to be $422,338.14 9, is difficult for the Court to compute. However, it is the Court's finding, having considered the approximate values as discussed, that each party shall receive his or her total retirement benefit[.]"

At the conclusion of the docket entry is a notation indicating that the clerk sent a copy of the entire entry by facsimile transmission to Pat's lawyer and J. D.'s lawyer.

The next event of record occurred May 12, 1998. An entry on the docket sheet that date reads: "Notice Setting Hearing on Clarification on Judgment Monday, June 1, 1998 at 1:30 P.M. in Division III Courtroom in Joplin."

The next entry on the docket sheet is dated June 2, 1998. It sets forth several respects in which the trial court "amends and clarifies its February 17, 1998 docket entry." J. D.'s retirement benefits are not mentioned in the June 2, 1998, entry, but one provision thereof is: "To the extent there is a disproportionate division of assets the Court finds there is more fault on the part of [J. D.]." At the conclusion of the June 2, 1998, entry is a directive that Pat's lawyer prepare a "formal judgment entry."

Judgment was ultimately entered August 12, 1998. The judgment values J. D.'s "retirement benefit" at $422,338.14 and declares that "7/29ths" of it is marital property. The judgment assigns the 7/29 a value of $101,943.68 and awards it to J.D. as marital property. The judgment assigns the remaining 22/29 a value of $320,394.46 and sets it apart to J.D. as his "non-marital property ."

J. D.'s first point relied on reads:

"The trial court erred in valuing [J. D.'s] retirement fund at $422,338.14 in violation of section 452.330 RSMo. in that there was no substantial and competent evidence before the court to support the court's value thereby resulting in an unjust distribution of marital property."

J. D.'s brief, authored by his lawyer, proclaims:

"[T]his attorney did not see any type of hand written entry on Petitioner's Exhibit # 1 regarding [J. D.'s] retirement at the time [J.D.] was being cross-examined.... It is extremely hard to conceive how a figure such as $422,388.14 would have gone unnoticed given the fact that this attorney went to great lengths to discuss the life insurance ... just seven lines above the mysterious hand written entry.... This attorney can only state that the hand written figure of $422,338.14 was not on petitioner's exhibit # 1 during the cross-examination of [J. D.]. It is impossible for an attorney to make an objection to evidence that does not exist."

This court gathers from the above argument that J. D.'s lawyer maintains the Disputed Entry was never presented as evidence at trial, hence there was no evidentiary support for the trial court's finding that J. D.'s "retirement benefit" is worth $422,338.14. J. D.'s brief correctly points out that the Disputed Entry is the only basis in the record for the trial court's valuation of J. D.'s "retirement benefit" at $422,338.14.

Pat's brief responds: "[J. D.'s] contention that the [Disputed Entry] on [Exhibit 1] appeared after it was introduced into evidence is untrue."

This court cannot determine from the record when the Disputed Entry was placed on page 8 of Exhibit 1. However it is obvious that the Disputed Entry was there when the trial court made its docket entry February 17, 1998. The portion of that entry quoted earlier in this opinion recites that Pat says the value of J. D.'s "retirement benefit" is $422,338.14. As previously noted, the Disputed Entry is the only source in the record for that assertion.

It should have been apparent to J. D.'s lawyer from the trial court's February 17, 1998, docket entry that the court might value J. D.'s "retirement benefit" at $422,338.14. Nothing in the record indicates J. D.'s lawyer challenged that segment of the February 17, 1998, docket entry. J. D.'s lawyer had ample time to do so, as more than three months elapsed between that entry and the June 1, 1998, "clarification" hearing. Two and a half more months passed after that hearing before the trial court entered judgment.

There is a procedure for resolving the issue of when the Disputed Entry was made on page 8 of Exhibit 1. Rule 81.15(d) 10 provides, in pertinent part:

"If there is any dispute concerning the correctness of any legal file ... the party disputing the correctness thereof shall designate in writing to the appellate court those portions of the legal file ... that are disputed. Such designation shall be filed with the appellate court within fifteen days after the legal file ... is filed.... The appellate court shall direct the trial court to settle the dispute and to certify the correct contents of such portion to the appellate court, and such certification by the trial court shall become a part of the record on appeal."

The copy of Exhibit 1 furnished this court is in a supplemental legal file; Pat filed it March 26, 1999. J.D. did not designate in writing to this court any disputed portion of Exhibit 1 within fifteen days thereafter. Consequently, J.D. did not utilize the procedure for solving the mystery about the Disputed Entry.

An appellate court must accept the record as...

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