Pierce v. Pierce, 11981

• Decision Date: 03 September 1981
• Docket Number: No. 11981,11981
• Citation: 621 S.W.2d 530
• Parties: James Corris PIERCE, Petitioner-Respondent, v. Connie Sue PIERCE, Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 530

621 S.W.2d 530

James Corris PIERCE, Petitioner-Respondent, v. Connie Sue PIERCE, Respondent-Appellant.

No. 11981.

Missouri Court of Appeals, Southern District, Division One.

Sept. 3, 1981.

John J. Phillips, Independence, for petitioner-respondent.

John W. Dennis, Jr., James S. Cottingham, Kansas City, for respondent-appellant.

GREENE, Presiding Judge.

James Corris Pierce (husband) filed a petition in the circuit court of Polk County, Missouri, for dissolution of his marriage to Connie Sue Pierce (wife). The petition alleged that husband was a resident of Polk County and that wife was a resident of Jackson County. The petition requested a decree of dissolution and a division of the marital property.

In her answer, the wife requested that husband's petition be dismissed by reason of improper venue, claiming the husband was a resident of Greene County, Missouri. She also filed a cross-petition requesting a dissolution of the marriage, division of the marital property and attorney fees. The trial court heard evidence on the venue issue and found proper venue in Polk County, after which evidence was heard on the other issues. A judgment was then entered dissolving the marriage, dividing the marital property, and awarding the wife $1,000 attorney fees. The wife appeals. We affirm.

On appeal, the wife contends that the trial court erred in 1) finding that Polk County was the proper venue, 2) the division of marital property as such division was grossly unfair and against the weight of the evidence, and 3) the awarding of $1,000 attorney fees to the wife because such was inadequate.

We review the judgment pursuant to Rule 73.01(c), V.A.M.R., as construed in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). There is substantial evidence in the record to support the judgment of the trial court. The husband testified that he, at the time he filed his petition, was a resident of Fair Play, Polk County, Missouri. He owned a home in Polk County, received his mail in Polk County, and voted in Polk County. The wife did not offer any substantial evidence to rebut husband's testimony. A party attacking venue has the burden of persuasion and proof, if proof is necessary. Glick v. Ballentine Produce, Incorporated, 396 S.W.2d 609, 612 (Mo.1965), appeal dismissed, 385 U.S. 5, 87 S.Ct. 44, 17 L.Ed.2d 5 (1966). The wife did not meet her burden on the venue question.

On the division of marital property issue, there was substantial evidence that when the parties were married, the husband owned an unencumbered tract of land in Polk County worth at least $165,000. The wife owned a house in Jackson County (the Evanston house) with a net value of $30,000. These were the only items of any substantial net value brought into the marriage by either party. The parties only lived together five months during which time the husband mortgaged his Polk County land to the tune of $142,000 and spent the money on a new home for the parties in Jackson County (the Hedges property) with a purchase price of $86,500, furniture, fixtures and appliances for the home, and "living it up." During the separation of the parties and prior to trial, husband's mortgaged land was foreclosed and sold by the lending institution. The husband received $9,000 from the proceeds of the sale. The wife kept the Evanston property.

The trial court valued the Hedges home at $100,000 and awarded it to the husband, subject to a...