Metts v. Metts

• Decision Date: 17 November 1981
• Docket Number: No. 43694,43694
• Citation: 625 S.W.2d 896
• Parties: Dorothy L. METTS, Appellant, v. Richard D. METTS, Respondent.
• Court: Missouri Court of Appeals

Page 896

625 S.W.2d 896

Dorothy L. METTS, Appellant, v. Richard D. METTS, Respondent.

No. 43694.

Missouri Court of Appeals, Eastern District, Division Three.

Nov. 17, 1981.

Theodore S. Martin, Clayton, Michael A. Turken, St. Charles, for appellant.

Claude C. Knight, St. Charles, for respondent.

REINHARD, Presiding Judge.

Dorothy Metts, wife, appeals from a decree of divorce granted her husband of 22 years, Richard Metts. Wife initiated these proceedings by filing a petition for dissolution of marriage. Her husband filed an answer and cross petition for divorce. Wife filed no responsive pleading to husband's petition.

The cause was set for trial on October 30, 1980. On the morning of trial, neither wife nor her attorney were present. On the motion of husband's attorney, the court dismissed the wife's petition for failure to prosecute and proceeded to hear testimony and receive evidence on husband's cross petition. On October 31, the trial court entered a decree and set apart to husband his separate property, divided the marital property, granted custody of the two children, age 12 and 16, to wife, ordered husband to pay $35.00 per week per child for child support and found that neither party was entitled to maintenance.

On November 10, wife filed a motion to set aside the default judgment. Thereafter, on November 21, the trial court heard testimony on wife's motion and at the conclusion of the hearing, denied the motion. Wife obtained new counsel and this appeal followed. Wife contends the trial court erred in: (1) improperly dismissing her petition on the morning of trial; (2) dividing the marital property; (3) failing to award a larger amount of child support; (4) failing to award her maintenance and (5) failing to set aside the default judgment. We affirm.

Wife contends the trial court erred in dismissing her petition upon oral motion of her husband on the day of trial because she was not provided notice and husband did not establish prejudice.

It has long been recognized in this state that if a party fails to appear on the day a cause is set for trial, the court may dismiss the petition for failure to prosecute. Doughty v. Terminal Railroad Association of St. Louis, 291 S.W.2d 119, 121 (Mo.1956); Bindley v. Metropolitan Life Ins. Co., 358 Mo. 31, 213 S.W.2d 387, 389 (1948). The trial court's decision to dismiss on such grounds will not be disturbed on appeal unless it constituted an abuse of discretion. State ex rel. State Highway Commission v. Graeler, 495 S.W.2d 741, 743 (Mo.App.1973). As to the requirement of notice under such circumstances, the Supreme Court in Doughty, supra, stated: "(W)hen a party defaults on a trial setting he has had the requisite notice ...." at 121. We find no abuse of the trial court's discretion.

Wife next attacks the trial court's division of the marital property. First, she asserts there was no evidence of the value of five insurance policies and a trailer awarded to husband. She contends that without evidence of their value the trial court could not fairly divide the property. Freeman v. Freeman, 586 S.W.2d 386, 387 (Mo.App.1979). The decree awarded to husband the trailer in which he lived along with the 43 acre tract of land on which it was located. Husband testified that the value of the land and trailer together was $125,000.00. Since they were both awarded to husband, wife cannot be heard to complain that a separate value apart from the land should have been established for the trailer. As to the five insurance policies, there was evidence that four of the policies were term insurance and consequently had no cash value. Any cash value of the $1,000.00 whole life policy was of a de minimis or speculative nature in light of the $560,000.00 in marital property that was distributed by the trial court and we shall not disturb the trial court's award in this regard. Murphy v. Murphy, 613 S.W.2d 450, 452 (Mo.App.1981).

Secondly, she asserts the trial court erred in awarding personal property to the party in possession without an inventory of that property, citing Wansing v. Wansing, 612 S.W.2d 55 (Mo.App.1981). There is no merit to her contention. Under the decree, husband was awarded specific property in the possession of the wife listed and valued in Exhibit Q. Wife was awarded all other furnishings and personal property in the marital residence which husband valued at $20,000.00. The decree is sufficiently specific and the trial court clearly had evidence of the value of the personal property distributed by its decree.

Continuing in her attack on the division of marital property, she claims the trial court erred in failing to specifically assign a value in the decree to each item distributed to the parties. The trial court, however, was only required to assign a value to the property awarded to each spouse if so requested by one of the parties. Reynolds v. Reynolds, 610 S.W.2d 311 (Mo.App.1980); Rule 73.01. Husband made no such request. Neither did the wife. We see no reason this rule should not be applied here when wife failed to appear at trial. That the court made no valuation of each item of property does not affect the validity of the decree. Our review of the record reveals the trial court considered the value of the property distributed by its order. It did not have to set out a dollar amount for each item of property. Reynolds, supra.

Wife also contends that the trial court failed to consider the proper elements in valuing the three closely held corporations jointly owned by the parties. Husband filed a balance sheet for each of the three corporations, setting forth their assets and liabilities, as well as a net asset value calculated by subtracting the liabilities from the assets. Husband testified that these three corporations were involved in land surveying, real estate and development, and that business had been poor. He further testified one of the corporations, Metts Surveying, Inc., was not making any profit, so its assets had been leased to another business. We are of the opinion this was sufficient evidence of the value of these three corporations for the trial court to divide the property.

Finally, in connection with the division of marital property, wife contends husband received a disproportionate share of the property. We do not agree. Using husband's estimates of value, ¹ he received property with a value of $314,928.00 or 55% of the assets, while wife received property with a value of $251,900.00 or 45% of the assets. Under the mandate of § 452.330 RSMo. 1978, the trial court is required to consider four factors in dividing the marital property. This does not mean the court is required to equally divide the marital property, but only to fairly and equitably distribute it. The trial court is vested with considerable discretion in dividing marital property and an appellate court will only interfere if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of judicial discretion. In re Marriage of Schulte, 546 S.W.2d 41, 46-47 (Mo.App.1977). Here, our review of the entire record reveals that the trial court properly considered the relevant factors required under the statute, and its division of the marital property did not constitute an abuse of discretion. McCall v. McCall, 574 S.W.2d 496, 500 (Mo.App.1978).

Next, we consider wife's complaint that the court erred in failing to award her a larger amount of child support. She contends there was no evidence as to three of the elements the trial court is required to consider in awarding child support under the dictate of § 452.340 RSMo. 1978: (1) the financial resources of the children; (2) the standard of living the children would have enjoyed; and (3) the physical, emotional and educational needs of the children.

The determination of child support is a matter resting within the sound discretion of the trial court and we review the record only to determine whether that discretion was abused. Naeger v. Naeger, 542 S.W.2d 344, 347 (Mo.App.1976). Of the six elements listed in § 452.340 the financial resources of the non-custodial parent is the prime factor. L____ A____ J____ v. C____ T____ J____, 577 S.W.2d 151, 153 (Mo.App.1979). Here, the trial court had sufficient evidence of the income and assets of the husband to determine his ability to pay child support. From the evidence of the husband's income and the accumulated assets of the parties, the trial judge could have inferred the standard of living the children would have enjoyed. There was no evidence that the children had any independent source of income, so we will review the trial court's determination of child support as if they had none. Unquestionably, the record is...