Parker v. Parker, WD
| Decision Date | 15 December 1987 |
| Docket Number | No. WD,WD |
| Citation | 744 S.W.2d 469 |
| Parties | Mary Elizabeth PARKER, Respondent, v. John Gregory PARKER, Appellant. 39239. |
| Court | Missouri Court of Appeals |
Gary L. Stamper, Bear, Hines, Thomas, Dierkes and Stamper, Columbia, for appellant.
Carrie Francke, Powell, Seitz & Francke, Columbia, for respondent.
Before CLARK, P.J., and TURNAGE and MANFORD, JJ.
The principal issue in this appeal from a dissolution of marriage decree is whether the trial judge discharged his responsibility under § 452.330.1, RSMo 1986, to divide the parties' marital property in just proportions. Appellant contends the court abused the discretion invested in it by ordering a forced sale of all assets by the sheriff. We agree and therefore reverse the judgment as to marital property disposition and also as to the dependent issue of maintenance.
Appellant and respondent were married in 1973 and separated in 1985. Two children are affected by the dissolution decree. One was born of the marriage and the other, born to respondent in a prior marriage, was adopted by appellant. At the time of trial, respondent was 37 years of age and in good health. She has a high school education and had limited employment experience before and during the marriage. After separation, she obtained work as a dentist's receptionist and also worked part-time as a sales clerk. Her gross monthly earnings amounted to $900.00 per month. She continued to live in the family residence as did the two children. Appellant relocated in his parents' home.
Appellant is a doctor of veterinary medicine. He has conducted a practice in the profession since 1971. The parties' residence is situated on a small acreage tract on which is also located a large barn and three horse stalls. Appellant's office is located in the central area of Columbia, but he also uses the barn and horse stalls in his practice for treatment of animals which cannot be accommodated at appellant's office.
The foregoing facts were not disputed and comprise part of the evidence heard by the court on November 5, 1986 from fourteen witnesses. Evidence was also presented as to the nature and value of marital assets, appellant's income and respondent's needs for maintenance and child support. Custody of the children and provisions for their support as ordered by the court are not in issue. At trial and here, however, lines of dispute were drawn over property division and maintenance. On these subjects, the trial court admonished the parties to agree between themselves, failing which, he indicated the marital assets would be turned over to the sheriff and sold. To allow for negotiations, the court took the case under advisement and entered no judgment.
As time passed, no agreement for a property division was reached and on February 13, 1987, the court entered the judgment from which this appeal is taken. The decree ordered the marriage dissolved, custody of the two children was awarded to respondent and appellant was ordered to pay $300.00 per month as child support. Respondent was awarded $600.00 per month interim maintenance pending a sale of marital property and $1,000.00 per month thereafter. As to the marital property, the court's order read as follows:
All other personal property [exclusive of separate property] and marital residence ordered sold at public auction by Sheriff of Boone County and the proceeds of same ordered divided equally less expenses and debt.
Notably, the judgment placed no value on any marital asset, it established no means for determining the adequacy of sale prices and it did not apportion the respective ownership interests of the parties. Appellant complains here that the trial court abused its discretion in ordering the sale of assets by the sheriff.
In Swinford v. Swinford, 682 S.W.2d 189 (Mo.App.1984), this court held that a trial court has no jurisdiction to order property sold in a marriage dissolution case until the court first divides the property and vests ownership in one party or the other, or in the parties in definite proportions. The rule implements the directive of the statute which requires the court to make a division of property exercising its judgment to determine from the evidence what division will be just. Only after the court has made that proportional allocation may the necessity for a sale be considered.
In the present case, the court made no determination of the respective interests of the parties in the various assets, both personal property and real estate, but merely ordered a wholesale liquidation. An order for sale is not appropriately used as a tool to force an agreement between contesting spouses or as a means for the court to avoid a particularized division of marital property. Because there was here no decree vesting ownership in appellant or respondent as to the assets, only a post-sale order for division of an unknown amount of proceeds, the court lacked jurisdiction to order the sale and that order is void. Id. at 191.
If, as we conclude, the order for the sheriff's sale was void, then there has been no disposition of marital assets in this case because there will be no sale proceeds to divide. The obligation of the trial court to divide the marital property continues until satisfied by entry of an appropriate judgment. Until that disposition has been made, the trial court has not exhausted its jurisdiction and the marital property is still subject to that jurisdiction. State ex rel. Brewer v. Sheehan, 565 S.W.2d 850, 851 (Mo.App.1978). For that reason, this case must be remanded to the trial court for its consideration of the issues presented on division of marital property. As was true in Swinford, some further comment is necessary to preclude re-entry of the same judgment based on a general finding that each of the parties is vested...
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