Messer v. Messer

• Court: Missouri Court of Appeals
• Writing for the Court: Robert S. Barney
• Citation: Messer v. Messer, 41 S.W.3d 640 (Mo. App. 2001)
• Decision Date: 26 April 2001
• Parties: (Mo.App. S.D. 2001) Edith L. Messer, Respondent, v. Donald L. Messer, Appellant. 23474 0

41 S.W.3d 640 (Mo.App. S.D. 2001)

Edith L. Messer, Respondent, v. Donald L. Messer, Appellant.

23474

Missouri Court of Appeals Southern District

04/26/2001

Appeal From: Circuit Court of Lawrence County, Hon. William T. Kirsch

Counsel for Appellant: John A. Woodard

Counsel for Respondent: Susan Appelquist

Opinion Summary: None

Garrison and Rahmeyer, JJ., concur.

Robert S. Barney, Chief Judge

Donald L. Messer ("Husband") appeals from an amended judgment of the Circuit Court of Lawrence County, which dissolved his marriage with Edith L. Messer ("Wife").

The parties were married on September 15, 1973. No children were born of the marriage. During the marriage, Husband and Wife accumulated assets consisting mainly of the marital home valued at $112,000.00; Edward Jones IRA account number 967-90492-1-4, valued at $762,489.95;¹ Edward Jones account number 967-06417-1-2, valued at $23,549.91; vehicles and other personal properties. In January of 1997, Wife inherited approximately $116,000.00 from her mother's estate.

On April 14, 1998, Wife filed for dissolution of marriage. In its judgment, the trial court set off to Wife her separate property consisting of a home valued at $59,000.00, purchased with money inherited from her mother, together with other assets worth about $50,000.00. In dividing the marital property, the trial court awarded to Husband the marital home and one-half of the remaining assets totaling $539,193.00, or roughly 57% of the marital estate. Wife was awarded $408,847.51, or approximately 43% of the estate. In order to compensate for the disparity, the trial court ordered Husband to pay $65,172.75 to Wife. The trial court held that neither party was entitled to maintenance or attorney's fees.

In his sole point relied on Husband posits trial court error in "awarding the marital property evenly between the parties . . . ." He contends that Wife "engaged in marital misconduct which placed additional burdens upon Husband;" that Wife had other separate property which the trial court failed to consider in dividing the property on an equal basis; and that the "vast majority of marital assets were the direct result of Husband's efforts."

As with other court-tried cases, we must affirm a decree in a dissolution case 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. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991).² We are to defer to the trial court's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree, disregarding all contrary evidence and inferences. In re Marriage of Perkel, 963 S.W.2d 445, 447 (Mo.App. 1998). "This is because credibility of witnesses and the weight to be given their testimony is a matter for the trial court, which is free to believe none, part, or all of the testimony of any witness." Id.

"When reviewing the lower court's division of property we will presume the court's division is correct." Hosack v. Hosack, 973 S.W.2d 863, 868 (Mo.App. 1998). Section 452.330 gives the trial court great flexibility and far-reaching power to divide the marital property so as to accommodate the needs of the parties upon dissolution and there is no formula respecting the weight to be given by the trial court to the relevant factors set out. Holt v. Holt, 976 S.W.2d 25, 28 (Mo.App. 1998); see also Keller v. Keller, 18 S.W.3d 589, 600 (Mo.App. 2000); Waisblum v. Waisblum, 968 S.W.2d 753, 756 (Mo.App. 1998).

In Husband's first sub-point of his sole point relied on, he maintains that the trial court failed to recognize the purported misconduct of Wife in dividing the marital property. Husband testified that he and Wife separated on April 9, 1998, when she came home and announced that she was leaving him. He further testified that approximately one month later he observed Wife in a parked vehicle with another man, her employer, engaged in romantic activity. Both Wife and her employer testified at trial that what Husband claimed to have seen did not occur. While both Husband and Wife testified that Wife had gone away for the weekend with her employer just prior to separating from Husband, Wife stated that the trip was business related. Husband claims that this conduct by Wife constituted marital misconduct which put an emotional strain on Husband with resulting physical manifestations and should have been taken into consideration by the trial court in its division of marital property. Wife testified that she had not begun a romantic relationship with her employer until the middle of June 1998, over two months after her separation from Husband. She further related that during the marriage Husband exhibited a bad temper and had anger control problems. She stated that he struck her on at least one occasion. Husband refuted this testimony.

"Under [section] 452.330.1(4), the trial court is required to consider the parties' conduct during the marriage when dividing the marital property." Nelson v. Nelson, 25 S.W.3d 511, 519 (Mo.App. 2000). Although marital misconduct is not a legitimate basis for punishing a party when dividing marital property, "it is a factor in property division when the offending conduct places extra burdens on the other spouse." Id. (quoting McNair v. McNair, 987 S.W.2d 4, 6 (Mo.App. 1998)). "[I]t is only when misconduct of one spouse changes the balance so that the other must assume a greater share of the partnership load that it is appropriate that such misconduct affect the distribution of property." Id. (quoting McNair, 987 S.W.2d at 6-7). Even if the trial court believes the evidence of misconduct, it may still divide the marital property in substantially equal fashion if proper to do so under all factors set forth in section 452.330.1. Hosack, 973 S.W.2d at 869. As previously set out, when resolving conflicting testimony between parties, the trial court may reject or accept any of the testimony brought before the court. In re Marriage of Thomas, 21 S.W.3d 168, 176 (Mo.App. 2000). Deference is given to the trial court in observing the witnesses and determining their credibility. Laffey v. Laffey, 4 S.W.3d 655, 658 (Mo.App. 1999).

In our review of the record, we fail to see where Wife's conduct may have placed an extra burden on spouse. Wife testified that she did not engage in a romantic relationship with another man until after her separation from Husband. Husband points to no expenditures of marital funds which were dissipated as a result of Wife's ostensible extra-marital activities. Aside from his own testimony, Husband fails to show that Wife's post-separation activity added any significant, additional stress to Husband or the marriage. Therefore, we cannot say that the trial court erred in failing to find any marital misconduct by Wife. Husband's proffered evidence of Wife's marital misconduct was inconclusive and insufficient so as to affect the division of marital property. Rich v. Rich, 871 S.W.2d 618, 626 (Mo.App. 1994). "[I]f reasonable persons can differ about the propriety of the trial court's action, it cannot be said the court abused its discretion." In re Marriage of Eskew, 31 S.W.3d 543, 550 (Mo.App. 2000). We find no abuse of discretion by the trial court. Id. Subpoint denied.

In his second sub-point, Husband contends that the trial court erred in failing to take into consideration the...