Mehrle v. Mehrle

• Citation: 813 S.W.2d 886
• Decision Date: 10 July 1991
• Docket Number: No. 17149,17149
• Parties: Johnnie S. MEHRLE, Petitioner-Appellant, v. Parker MEHRLE, Respondent-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 886

813 S.W.2d 886

Johnnie S. MEHRLE, Petitioner-Appellant, v. Parker MEHRLE, Respondent-Respondent.

No. 17149.

Missouri Court of Appeals,

Southern District,

Division Two.

July 10, 1991.

Motion for Rehearing or to Transfer

Denied Aug. 1, 1991.

William Clayton Vandivort, Dement, Vandivort and Dement, Sikeston, for petitioner-appellant.

James E. Reeves, Ward & Reeves, Caruthersville, for respondent-respondent.

FLANIGAN, Chief Judge.

This action for dissolution of marriage was instituted by Johnnie Mehrle against her husband Parker Mehrle. The parties, who will be referred to by their first names, were married on February 5, 1972. Johnnie was then 32 and Parker was 39. Each had been married before. Johnnie had three children by a prior marriage, and Parker had two children. This marriage was childless. The parties separated on May 18, 1989, and this action was filed on August 14, 1989.

Johnnie's petition requested, among other things, "that the court divide the marital property," and that the court award her maintenance. Parker's answer alleged that Johnnie was not entitled to maintenance or a division of marital property for the reason that the parties entered into a prenuptial contract on or about February 1, 1972, in which for a valuable consideration Johnnie "did expressly waive, relinquish and discharge all property rights and rights to alimony." Johnnie filed no reply to the answer.

Prior to the trial, Johnnie filed a request for findings of fact and conclusions of law. Johnnie also filed a motion to disqualify attorney James E. Reeves from representing Parker in this action. Attorney Reeves filed an affidavit in opposition to the motion to disqualify. The court denied the motion, and the case proceeded to trial.

The judgment of the trial court dissolved the marriage, classified certain property as marital property and divided it, awarded "$22,500 in cash" to Johnnie, denied an allowance of maintenance to Johnnie, and awarded Johnnie $2,000 for attorney's fees. The trial court found that by reason of the prenuptial contract it was not necessary to classify, as marital property or separate property, Parker's interest in a partnership known as Mehrle Farms or Parker's interest in a 160-acre farm. With respect to the last two items, the trial court found that each was without value by reason of encumbrances.

The trial court classified certain assets as marital property, made a finding as to the net value of each asset, and distributed them as follows:

                                             Marital Property
                                     Net Value   Awarded to Johnnie    Awarded to Parker
                1987 Ford             $1,618.80      $1,618.80
                1977 Chevrolet           300.00                           $    300.00
                Checking Account
                First State Bank
                of Caruthersville        500.00                                500.00
                Barbecue Equipment     1,000.00                              1,000.00
                State Farm life
                insurance policies    11,294.58                             11,294.58
                Residence in
                Caruthersville        91,344.00                             91,344.00
                                    -----------  ------------------       -----------
                                    $106,057.38      $1,618.80            $104,438.58
                

Johnnie appeals. Prior to the trial, Johnnie and Parker agreed to a division of certain household goods. The trial court approved that agreement but made no mention of the value of those items. Neither side complains of that omission.

Johnnie's first point is that the trial court erred in awarding her "only $22,500 as her share of the marital property."

Division of the marital property is governed by § 452.330 ¹ (as amended in 1988), which reads, in pertinent part:

"... [T]he court shall set apart to each spouse his nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors 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; ..."

Review of this court-tried case is governed by Rule 73.01(c), as construed in Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976). The judgment will 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. "Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Murphy, at 32. Division of marital property lies in the sound discretion of the trial court. Colabianchi v. Colabianchi, 646 S.W.2d 61, 64 (Mo. banc 1983), and this court must defer to the trial court's judgment unless the judgment is improper under the principles of Murphy or an abuse of discretion is shown. Dardick v. Dardick, 670 S.W.2d 865, 868 (Mo. banc 1984).

There is no significant factual dispute. Although the trial court made an express finding that the prenuptial contract was valid, it classified the items set forth in the table as marital property and stated that its division of the marital property was made in consideration of "the circumstances of the parties and the factors set forth in § 452.330." Parker did not appeal from the judgment. In this court, Parker makes no claim that the prenuptial agreement barred the classification of the listed items as marital property or distribution of them pursuant to the statutory factors. His brief says: "The prenuptial contract is not a real issue in this case." In the trial court, Parker's Exhibit A listed, as items of marital property, the same items so classified by the trial court.

The principal item of marital property is the residence in Caruthersville. After separation, Johnnie moved to Tennessee and offered no testimony that she desired to live in the residence. The trial court found that the residence had a value of $95,000 and was subject to two liens totaling $3,656. Parker testified that the house cost $94,500 and that $50,000 of that amount was paid by money given to Johnnie and Parker. Parker listed as a "marital debt" the sum of $49,463.02 which, he said, was due his "co-partner for excessive withdrawals during the marriage, used principally to pay on the residence." This court's review of the entire record leads it to reject that so-called "marital debt," so far as Johnnie is concerned. It finds no substantial evidence to support that statement.

Prior to the marriage, Johnnie was employed as a waitress and bartender and continued that employment during some of the marriage. After the parties separated, Johnnie resumed similar work. Johnnie testified that during the marriage she helped Parker on the farm, fixed lunches for the men, hauled cotton trailers, and helped in the farming operation, for which she received no pay. Parker did not dispute that testimony.

Beginning in 1957 and continuing through the trial, Parker was a partner with his brother-in-law, Julian Boyd, in a farming partnership known as Mehrle Farms. The partnership farms 160 acres which the partners own, and also farms, on a "crop rent" basis, 1,665 acres owned by other people.

This court finds that each party contributed equally to the acquisition of the marital property. The trial court made the same finding except for the so-called marital debt which this court has rejected.

The only separate property set apart to Parker was his interest in the Mehrle Farms partnership and his interest in the 160-acre farm. The trial court found, and the evidence supports the finding, that by reason of encumbrances and liabilities neither of those items had any net value.

So far as the economic circumstances of each spouse is concerned, Johnnie is working as a bartender and Parker continues his activities in the farm partnership. Their respective incomes, for the years immediately prior to the trial, which was held in July 1990, were as follows:

                      Parker      Johnnie
                1989  $60,646.32  (Did not file joint return)
                1988   27,485.54  $9,187.55
                1987   43,472.43   8,808.23
                1986   33,216.07   8,281.62
                1985   38,150.64   8,375.23
                

Neither party claimed that the other party was guilty of misconduct.

This court's review of the record leads to the conclusion that the marital property should be divided on an approximate 50/50 basis.

The principal item of marital property is the residence. Several Missouri cases, primarily from the Western District, have expressed a reluctance, absent a compelling reason, to leave marital property, real or personal, vested in the parties as tenants in common. Reed v. Reed, 775 S.W.2d 326, 329 (Mo.App.1989); True v. True, 762 S.W.2d 489, 490[1, 2] (Mo.App.1988); In re Marriage of Farquhar, 719 S.W.2d 456, 458 (Mo.App.1986); Branstetter v. Branstetter, 637 S.W.2d 347, 350 (Mo.App.1982); Corder v. Corder, 546 S.W.2d 798, 805 (Mo.App.1977); Davis v. Davis, 544 S.W.2d 259, 264 (Mo.App.1976). In Davis the court said, at 264: "[A] tenancy in common solution should be reserved for the unusual situation where the economics involved call for such a solution."

The trial court awarded to Parker all of the interest in the residence and awarded "$22,500 in cash to Johnnie." The practical difficulty with that award is that amount of cash is not present in the marital property.

This court revises the trial court's distribution of the marital property by deleting that portion of the judgment which awarded the residence to Parker and by deleting that portion of the judgment which awarded...