Miller v. Miller, WD

• Decision Date: 06 April 1982
• Docket Number: No. WD,WD
• Citation: Miller v. Miller, 635 S.W.2d 350 (Mo. App. 1982)
• Parties: James L. MILLER, Appellant, v. Melba D. MILLER, Respondent. 32217.
• Court: Missouri Court of Appeals

Page 350

635 S.W.2d 350

James L. MILLER, Appellant, v. Melba D. MILLER, Respondent.

No. WD 32217.

Missouri Court of Appeals, Western District.

April 6, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied June

1, 1982.

Lawrence F. Gepford, Jr., Gepford & Sears, Kansas City, for appellant.

Gary C. Clifton, Liberty, for respondent.

Before NUGENT, P. J., and TURNAGE and LOWENSTEIN, JJ.

NUGENT, Presiding Judge.

James Lee Miller appeals from the decree of dissolution of marriage assigning as error the award of maintenance to respondent, the distribution of the marital property and the designation of a tractor as non-marital property. We affirm.

After nineteen years, the marriage of James and Melba ¹ Miller was dissolved on October 3, 1980. The division of the marital property and maintenance to Mrs. Miller were the only issues at the trial.

Mr. Miller, a carpenter, testified that he had been injured in January, 1980 but was released from his physician's care four months later. He claimed that he had been unable to find work and did not know if he was physically able to hold a steady job. At the time of trial he was living on their farm in Cass County, Missouri.

Mrs. Miller, who had moved to her parents' farm near Climax Springs, Missouri, in the spring of 1979 shortly before the separation in anticipation of living there with Mr. Miller, was a licensed beautician. She had earlier operated her own shop in Adrian, Missouri, but felt that she had no opportunity to apply these skills in Climax Springs and lacked reliable transportation to commute to a larger town.

The parties disagreed as to the value of the marital property and as to the existence and amount of debts owed to their parents. Mr. Miller claimed that the parties owed $8,000 to his mother for a tractor purchased after the separation and for extra money for his living expenses. Mrs. Miller asserted that her mother, Goldie Slagle, had lent the couple $3,000 to buy the beauty shop in Adrian, $1,500 to remodel it, $2,400 to pay off a jeep and $1,900 to pay for property in Dayton, later sold. Mrs. Slagle confirmed this testimony. Victor Slagle, Mrs. Miller's father, testified that he had contributed $1,875.10 for feed for the Millers' cattle since 1979.

The final decree awarded maintenance to the wife in the amount of $175 per month, divided the marital property, and awarded the tractor to Mr. Miller. He was ordered to pay Mrs. Miller $7,000 within ninety days and an additional $4,400 to her, which could be satisfied by paying Goldie Slagle directly. The court made the following disposition of the marital property:

          MR.MILLER
                ------------------------------
                Assets
                ------
                Note securing Dayton
                  property             $14,800
                Adrian lots             20,000
                Guns, boats, motors
                  trailers, tools        3,150
                1974 Chevrolet truck
                  1975 Jeep              5,100
                Household goods          1,250
                Income Tax refunds
                  farm income            5,850
                                       -------
                                       $50,150
                         MRS. MILLER
                ------------------------------
                Assets
                ------
                Farm                  $42,500
                Cattle                  3,880
                Beauty Shop equip.        500
                1973 Chevrolet truck      500
                Household goods         1,250
                Liabilities
                -----------
                Lien on farm           (9,300)
                Lien on cattle         (3,235)
                                      --------
                                      $36,095
                

Mr. Miller filed a motion for a new trial which the court heard, but declined to grant, instead amending the original decree to award to him the bank accounts and rent previously omitted.

In its review of the judgment below, this court is limited by the standards set forth in Murphy v. Carron, 536 S.W.2d 30 (Mo.1976) (en banc). The decree should be set aside only if there is no substantial evidence to support the judgment or the court erroneously declared or applied the law, and furthermore, only if this court firmly believes that it is wrong. Id., at 32. See also Rule 73.01. In addition, the lower court is vested with considerable discretion in dividing marital property and in awarding maintenance. Royal v. Royal, 617 S.W.2d 615, 618 (Mo.App.1981).

In his first two points Mr. Miller attacks the award of maintenance on the ground that Mrs. Miller did not demonstrate that she was unable to support herself and failed to show that her financial resources were inadequate. See § 452.335, R.S.Mo.1978 ². He makes no claim that he cannot afford to pay the maintenance award of $175 monthly, but claims that her share of the marital property was adequate to meet her needs ³.

The undisputed evidence showed that Mrs. Miller had worked as a beautician and that she had worked hard on the farm. Employment as a beautician in Climax Springs was not feasible and she did not have reliable transportation to commute to a larger town. Although a possible source of income was the cattle, the lien was almost equal to their value. The farm awarded to Mrs. Miller grossed for the parties $643...