Nilges v. Nilges, 41890
Decision Date | 05 November 1980 |
Docket Number | No. 41890,41890 |
Citation | 610 S.W.2d 58 |
Parties | Frances R. NILGES, Respondent, v. James W. NILGES, Appellant. |
Court | Missouri Court of Appeals |
William J. Fletcher, Clayton, for appellant.
Ellsworth Cundiff, Jr., St. Charles, for respondent.
This is the second time this case comes before this court. On the first occasion, Nilges v. Nilges, 564 S.W.2d 262 (Mo.App.1978), it was determined that the trial court had failed to enter a final appealable judgment because the court had failed to evaluate and allocate a certain potentially valuable asset, namely the husband's rights as beneficiary of a retirement program. Following remand the parties stipulated to the facts of the retirement plans and the trial court entered a decree of dissolution on June 15, 1979. The property division was identical in terms to the decree of April 28, 1975, with the exception of an award of the appellant's pension program made to him in the last decree.
Appellant James W. Nilges assigns eight points of trial court error. Our review of this court-tried case is defined by Rule 73.01 which directs us to review the case upon both the law and the evidence, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976); In re the Marriage of Hayden, 588 S.W.2d 165 (Mo.App.1979). Aside from a modification, which we consider to be of a minor nature, we affirm and make permanent the decree of June 15, 1979.
Appellant first charges that the trial court erred in dividing the marital property because it failed to take into consideration the value of the property set apart to each spouse. In setting out the factors that were considered in the division of property, the court in its decree did not expressly state that value was considered. The decree did list three other factors required by § 452.330.1, RSMo 1978. Appellant thus concludes that value was not considered. We cannot agree with this conclusion.
Estimates of the values of different items of property both real and personal were given by both appellant and respondent. Two residences on subdivided lots together with their contents were owned by the parties. One was occupied by the wife and one by the husband. In addition, they owned a farm on which was situated various items of personal property including three mobile homes. The court had specific values to consider in dividing the property. The wife was awarded the residence in which she lived which was higher in value than the one in which the husband resided. The husband received the house where he lived. A division of the household goods was made according to the location, those in the house where the wife lived generally going to her, those in the house where the husband lived going to him. The vehicles were divided. The court ordered that the farm and the items of property located thereon were to be sold and divided between the parties after certain debts were to be paid. Although not expressly stated, we believe that it is implicit in the division that these values were taken into consideration.
The second point raised by appellant-husband charges that the division of the property constituted an abuse of discretion. He submits that he received forty-four percent of the property while his former spouse received fifty-six percent. These percentages were arrived at by averaging values where the parties gave different figures and using one party's figure where only one estimate was given. It does not take into consideration the value of accrued and vested benefits in the United States Army Reserve Pension and Retirement Plan nor accrued and a vested interest in a union retirement and pension plan on which the husband may be entitled to draw as a result of his membership in the union. These were awarded to the husband.
It is clear that the division of marital property must be just but need not be equal. Madden v. Madden, 585 S.W.2d 220, 221 (2) (Mo.App.1979). Neither will an appellate court second guess the trial court's balance of the equities. The trial court is vested with considerable discretion in dividing the marital property. In re the Marriage of Strelow, 581 S.W.2d 426, 429 (3) (Mo.App.1979). Our review of the facts in the case before us reveals no abuse of discretion in the division of property.
Appellant's third contention of error is directed toward the determination that the Nilges farm was marital property. Title to the farm was taken in both names when it was purchased in 1969 from appellant's father for $16,500. Appellant had used $2500 of the amount received from the sale of another tract of land titled in his name to make a down payment on the farm with the balance secured by a note and deed of trust executed by Mr. and Mrs. Nilges. All property acquired by either spouse subsequent to the marriage is presumed to be marital property. Section 452.330.3, RSMo 1978. This presumption may be overcome by a showing in the evidence that the property was acquired by a method listed in subsection 2 of this statute. Among the methods which might be considered pertinent in this case are property acquired in exchange for property acquired prior to the marriage. The tract sold was in appellant's name and had been acquired prior to the time of the marriage. However, it must also be shown by clear and convincing evidence that such a transaction was not intended as a provision for a settlement upon or as a gift to the other spouse. Here there was no evidence of a clear and convincing nature that was either offered or received to overcome the presumption. We therefore determine that this point has no merit.
The fourth point relied on by appellant concerns the determination in the court decree that three horses located on the farm near Linn, Missouri, and a motorcycle were the property of the parties' son James William Nilges, Jr. We agree with appellant that a judgment or decree may only affect property belonging to parties to an action. In re the Marriage of V. M. v. L. M., 526 S.W.2d 947, 952 (Mo.App.1975). When one analyzes the wording of the decree, however, it is obvious in our opinion that the court did not intend to award title to the horses or the motorcycle in the son. It merely confirmed the facts shown in evidence that these chattels had been gifts to the boy. A minor may acquire property and he cannot be deprived of this property except as provided by law. Griffith v. Schwenderman, 27 Mo. 412 (1858); 43 C.J.S. P. 389, Infants § 120. In the evidence adduced by appellant during the trial of the case, he testified that the horses were property of his son. The wife's testimony, the only evidence on the matter, indicated that although the appellant had title to the motorcycle, that it was a gift to the son.
The fifth point raised by appellant challenges the validity of the decree by reason of its failure to dispose of all the marital property, that is, the motorcycle, the three horses and appellant's military service life insurance policy. We have previously confirmed the court's finding concerning the motorcycle and the horses. The service life policy was in the face value of $20,000 and had no cash surrender value. The decree of dissolution made no disposition of...
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