Mistler v. Mistler, 17050

Citation816 S.W.2d 241
Decision Date29 August 1991
Docket NumberNo. 17050,17050
PartiesJerry D. MISTLER, Petitioner-Respondent, v. Ruth Ann MISTLER, Respondent-Appellant.
CourtCourt of Appeal of Missouri (US)

Brad J. Fisher, W. Craig Hosmer, Lee Ann Miller, Woolsey, Fisher, Whiteaker & McDonald, Springfield, for respondent-appellant.

Robert M. Sweere, Ivella McWhorter Elsey, Springfield, for petitioner-respondent.

SHRUM, Judge.

In this domestic relations case, the wife Ruth Ann Mistler appeals from those portions of a dissolution decree that divided property, ordered the husband Jerry D. Mistler to pay $500 a month child support, and declined to order the husband to pay the wife's attorney fees.

The principal property division issue is the characterization, as marital or nonmarital, of post-dissolution monthly annuity payments due each party. The payments are part of a court-approved settlement of the parties' claims that arose following an injury the husband sustained during the marriage. By its judgment, the trial court determined each party's post-dissolution annuity payments to be nonmarital property. We find no error in that determination. Finding no merit in the wife's remaining assignments of error, we affirm the judgment.

FACTS

The husband and wife were married January 9, 1971, and their marriage was dissolved June 28, 1990, following a separation that began in June 1986. One child Jared Scott Mistler, was born of the marriage on March 28, 1972.

There was conflicting evidence about the work history, work habits, and earning ability of the husband during the marriage, but the record is clear that during their marriage the parties were of modest financial means until January 12, 1982, when they settled their respective claims that arose from the husband's personal injuries.

The husband had sustained serious head injuries on August 4, 1978, while working at the Union Electric power plant near Fulton, Missouri. He was struck on the head with a three-ton steel beam, and the resultant injuries left him with both physical and mental impairments to the extent that he was totally disabled. The husband filed a claim for workers' compensation benefits, and both parties sued Union Electric in the City of St. Louis for the husband's personal injury and the wife's loss of consortium claims. On January 12, 1982, the Union Electric suit was settled.

Because the husband was incompetent at the time, the proposed settlement was presented to the Circuit Court in St. Louis for approval. A transcript of the settlement conference reveals that the wife had been appointed guardian for the husband and that she was at the conference in her individual capacity and as guardian. The husband was not present. The settlement court did not appoint a guardian ad litem, although the conference transcript reveals that the court earlier had considered appointing one if it had perceived "an inappropriate allocation of the funds of the proposed settlement" between the husband and the wife.

Under the terms of the proposed settlement, the defendant would pay the following:

1. To the husband: $48,000 per year with annual increases at 6 percent, to be paid for 10 years or for his life, whichever was greater;

2. To the wife: $150,000 initial payment plus $2,250 per month with annual increases at 6 percent, payable for 40 years;

3. To their son Jared Scott Mistler: $13,000 in 1990; $14,000 in 1991; $15,000 in 1992; $16,000 in 1993; and $50,000 in 1995.

4. Plaintiffs' trial preparation costs: up to $250,000.

5. Plaintiffs' attorney fee: $1,325,000, payable as follows: $650,000 at time of settlement; $225,000 in three years; $225,000 in four years; $225,000 in five years.

There were additional settlement terms. The workers' compensation carrier would pay medical expenses to the date of the settlement and waive all subrogation rights to any of the settlement proceeds, the husband's compensation claim would be dismissed with prejudice, and the husband would waive his claim to any medical expenses that were incurred after the date of the settlement. Future payments were to be made through the purchase of annuities. The present value of the settlement was calculated to be $2,381,118.

The settlement court rejected the initial proposal stating it would not approve "that kind of attorney fee in a minor or incompetent's case." The court approved a settlement that lowered the attorney fees and added an immediate lump-sum payment of $306,251.67 to the husband. Considering that lump-sum payment, the settlement court stated:

The court will propose to order that sum paid to Ruth Ann Mistler as guardian of the estate of Jerry Dennis Mistler for his use and benefit. Without such a payment, the court will have some difficulty approving the totality of the payment that was proposed to be made up front, as it were, to Ruth Ann Mistler in the amount of $150,000 without some portion of that being allocated to the estate. However, with this payment being made to the estate, the court can understand and appreciate that there is a need to pay money directly to Mrs. Mistler without its passing through the estate because the court has been informed that over the course of time since this accident, Mrs. Mistler has devoted herself to the care of her husband and that she has totally been responsible for maintaining the family and the expenses at great personal cost to her, and I have been informed she probably even had to borrow money in order to meet the expenses of the family. That money should be repaid back by her, if that is the case, and she should have funds readily available to do it.

The husband's $306,251.67 lump sum was paid to the wife in her capacity as his guardian. By the time of the dissolution trial, the husband's annuity payments had increased to $6,375 per month and the wife's annuity payments had grown to $3,586 per month. A transcript of the settlement conference was admitted into evidence at the dissolution trial. By its decree, the dissolution court made the following division of property it classified as marital:

                     MARITAL PROPERTY TO HUSBAND             MARITAL PROPERTY TO WIFE
                Property                      Value    Property                      Value
                Shelby County farm                     Shelby County farm
                 (Jerry's farm)              $100,500   (Ruth Ann's farm)           $156,550
                Furniture/personal effects      3,000  Callaway County residence     158,000
                1983 gooseneck trailer          2,000  Furniture/personal effects     63,180
                1989 Chevrolet pickup          12,500  1986 Chevrolet Blazer           8,500
                1978 AAYR trailer               5,000  1982 Oldsmobile                 1,000
                1985 Ranger boat,                      1976 Dona grain trailer         1,000
                  Motorguide
                 motor, Evinrude motor, and            1982 Chevrolet truck            4,000
                 Woom boat trailer              6,500  Ultralight one-man plane        1,000
                1984 Alumacraft, BMMF boat             Lawn and Leisure lawnmower        100
                 trailer, Suzuki and                   1985 Minnk motor                   50
                  Mercury
                 motors                         3,500  E.D. Jones account             42,000
                Boatmen's trust account       175,940  Kabota lawn tractor             5,000
                Bank accounts in Jerry's                LESS: debt on farm         (105,000)
                 name                           3,000        furniture debt        ( 20,000)
                                             --------                              ------------
                   TOTAL                     $311,940     TOTAL                     $315,380
                

The court declined to award maintenance or attorney fees to either party. The husband was ordered to pay $500 per month child support beginning June 1, 1990, and one-third of the child's "reasonable tuition" expenses. In its "Amended Decree" the trial court made these "findings":

21. That [the husband's] annuity represents future lost wages and earning capacity and is, consequently, nonmarital property.

22. That [the wife's] annuity represents her interest in [the husband's] future lost wages and earning capacity and is, therefore, nonmarital property.

....

25. That the lump sum payments, and annuity payments made up to the Decree of Dissolution of Marriage are marital property, but any payments received thereafter constitute payments for future lost wages and earning capacity and is, therefore, nonmarital property.

The wife appeals from the portion of the judgment dividing the property, setting child support, and denying her an award of attorney fees. Additional facts will be set out as needed throughout the course of this opinion.

Appellate review of a court-tried case is governed by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo.banc 1976). See Misdary v. Misdary, 737 S.W.2d 476, 479 (Mo.App.1987). Thus we must affirm the judgment of the trial court 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. Murphy, 536 S.W.2d at 32.

ANALYSIS AND DECISION

POINT I: DIVISION OF PROPERTY

In her initial point on appeal, the wife challenges the trial court's division of property on several grounds. She contends the trial court erroneously found "that annuities awarded to [the husband] and [the wife] as part of a personal injury settlement made during the marriage for injuries suffered during the marriage represented future lost earnings and were non-marital property, when in fact the annuities were marital property...." She also asserts, under point one, the trial court committed error when it "failed to take [the husband's] Social Security income into account when distributing the property," that the court's "division of the annuities between the parties was inequitable," and that the court, in its division of property, erroneously failed to compensate for certain payments made by the wife and certain expenditures of the...

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