Nixon v. Nixon

• Decision Date: 08 July 1975
• Docket Number: Nos. 36487 and 36488,s. 36487 and 36488
• Citation: Nixon v. Nixon, 525 S.W.2d 835 (Mo. App. 1975)
• Parties: Betty Lea NIXON, Petitioner-Respondents, v. Jeremiah NIXON, Respondent-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 835

525 S.W.2d 835

Betty Lea NIXON, Petitioner-Respondents, v.Jeremiah NIXON, Respondent-Appellant.

Nos. 36487 and 36488.

Missouri Court of Appeals, St. Louis District, Division Four.

July 8, 1975.

Thurman, Nixon, Smith, Howard, Weber & Bowles, James E. Bowles, Hillsboro, for respondent-appellant.

London & Greenberg, Burton Greenberg, St. Louis, for petitioner-respondent.

PER CURIAM:

Action by the wife for dissolution of the marriage of Betty Lea and Jeremiah Nixon.The trial court dissolved the marriage and awarded petitioner custody of 15-year-old daughter Penelope and $250 per month for her support; $500 per month for maintenance; the family home and contents; a half interest in a house in Versailles in which petitioner's mother lives; a $15,000 insurance policy on respondent's life; a secured promissory note for.$37,240, and an automobile.Respondent was awarded the interest of the parties in two business partnerships and small corporations; a $20,000 note owed respondent by one of the corporations; a life insurance policy on respondent's life; two motor vehicles, and other personal property.Both parties appealed.Neither contests the order dissolving the marriage.Both except to the money awards and orders relating to division of marital property.Petitioner asserts that awards of $500 per month for maintenance and $250 for Penelope's support are inadequate; that she should have been awarded $1,000 per month for maintenance and $550 per month for the support of Penelope; that $5,000 for an attorney's fee is overly conservative and should be increased to $6,500.Respondent disputes the propriety of any award of permanent maintenance and asserts error in awarding petitioner(1) the.$37,240 note; (2) the $15,000 life insurance policy; (3) the $5,000 attorney's fee; (4) a $500 additional attorney fee 'on account,' and error in retaining jurisdiction to supplement that award after appeal; and (5) $200 for suit money.At issue is the question whether certain items properly constitute marital property.Respondent contends that to declare (1) and (2) above marital property would violate due process because such an order would be based upon an ex post facto law (Laws 1973, p. 412, H.B. No. 315, the so-called 'no fault divorce law,' having taken effect after the filing of the original divorce action and before trial).Also at issue is petitioner's claim that the court erred in not apportioning to her one-half of the marital assets awarded respondent; in not granting to her custody of the 19-year-old son of the parties, and in not awarding her $550 per month for his support.Both appeals, consolidated for briefing and argument, will be disposed of in this opinion.The ex-wife will be referred to as 'petitioner' and the ex-husband as 'respondent.'

As to the constitutional question: Respondent contends that when this action was filed, prior to the enactment of § 452.330, RSMo 1969, V.A.M.S., which defines marital property and authorizes the court to divide marital property in such proportions as the court deems just, items (1) and (2) above were unquestionably his own separate property, in which he had a fixed, existing right, and that § 452.330, which took effect after that right vested and after this litigation was commenced, cannot constitutionally be applied retroactively to divest respondent of his property.The original petition was filed March 29, 1973.The new law went into effect January 1, 1974.On January 15, 1974petitioner filed an amended petition conforming to the new language and concepts.On March 24, 1974respondent filed his fourth amended answer, conforming to the new law, joining issue on what is and what is not marital property.Neither in his fourth amended answer, nor by separate motion in the trial court, nor by other proceeding, did respondent raise the constitutional question now sought to be raised.Having joined issue on the question what is marital property, and having failed to raise the constitutional question at the first opportunity (and not until his brief on appeal was filed January 20, 1975), respondent has waived the constitutional question.

Careful perusal of the 287-page original transcript, the 29-page supplemental transcript, the several exhibits, 112 pages of briefs and the appendices thereto, and consideration of the arguments of counsel, convinces this Court that the orders of the circuit court relating to the division of the marital property and the award of monthly stipends for maintenance, child support and attorney's fees and suit money, are just, in the light of the four relevant factors enjoined upon the court for consideration by § 452.330, RSMo 1969, V.A.M.S.Without reciting the supportive evidence in detail, which has no precedential value, we reach the same result arrived at by the circuit court and adopt and confirm those orders as reasonable and well considered.

While the trial court did not make a specific finding as to the value of the marital property (estimated by respondent at $362,290 in a statement filed with a bank, and at $207,968 in papers filed by him in this case)we find that the total value of the marital property, as of August 23, 1974, the date of the judgment and decree, was approximately $260,000.

We find that the reasonable value of the property properly awarded petitioner as...