Ploch v. Ploch, 44228
| Decision Date | 11 May 1982 |
| Docket Number | No. 44228,44228 |
| Citation | 635 S.W.2d 70 |
| Parties | In re the Marriage of Sarah Jane PLOCH, Respondent, v. Raymond Bernard PLOCH, Appellant. |
| Court | Missouri Court of Appeals |
William H. Leyhe, III, Clayton, for appellant.
Canice Timothy Rice, Jr., St. Louis, for respondent.
The issues in this post-dissolution of marriage proceeding centered on the proper division between ex-spouses of marital property not disposed of in their dissolution of marriage action.
The parties were divorced in July, 1978, after thirty-one years of marriage. In March, 1980, respondent Sarah Ploch (hereafter wife) moved to reopen the dissolution decree in order to divide marital property. Wife did not seek to change any property division ordered in her dissolution decree, and no such change could be made. State ex rel. McClintock v. Black, 608 S.W.2d 405, 406 (Mo. banc 1980). Rather, wife sought to divide her ex-husband's (hereafter husband) theretofore undivided "100 percent vested interest" in what is variously called an employees' profit sharing trust, a profit sharing fund, a profit sharing plan, and pension plan. Documents and a deposition describing the trust (or whatever) apparently were put in evidence when wife's amended motion was heard, but are not in the record before us. No matter; the parties stipulated below that the asset is marital property and that its value was $22,215.52 when their marriage was dissolved. The parties further stipulated the asset neither appears in the record of their dissolution action nor was disposed of in their dissolution decree. The only other evidence worth mentioning was that of wife's liaison with a Mr. Brown, and that husband's net income is $182.00 per week while wife is unemployed.
On those facts, the circuit court awarded wife $11,107.76 and prescribed a payment schedule for husband: an immediate payment of $2,107.76, and monthly payments of $100.00 until the balance is paid-subject to conditions not relevant here. Husband's appeal raises three issues: (1) whether a post-dissolution proceeding like this one can dispose of marital property not before the trial court in the antecedent dissolution of marriage action due to inadvertence of the parties; (2) whether the facts set out earlier suffice to award to wife what is, in effect, one-half the marital asset; and (3) whether the payment schedule was properly ordered. We answer all three issues affirmatively.
The touchstone for all issues on this appeal is the disposition of property provisions in § 452.330, RSMo.1978 ():
1. In a proceeding for nonretroactive invalidity, dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:
(1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse;
(3) The economic circumstances of each spouse at the time the division of property is to become effective ...; and
(4) The conduct of the parties during the marriage.
2. For purpose of sections 452.300 to 452.415 only, "marital property" means all property acquired by either spouse subsequent to the marriage (with exceptions not relevant here).
Husband's challenge to the propriety of this post-dissolution proceeding is answered in Chenoweth v. Chenoweth, 575 S.W.2d 871, 875 (Mo.App.1978). It was there recognized that a post-decree motion like this one to divide marital property not before the court in the antecedent dissolution of marriage action initiates a "special statutory proceeding contemplated by (s) 452.330." Further, the cases since Chenoweth upholding such proceedings do not distinguish between failure for whatever reason to bring property before the dissolution court, see, e.g.: Chenoweth v. Chenoweth, supra; Wilhoit v. Wilhoit, 599 S.W.2d 74, 77 (Mo.App.1980); In re Marriage of Jamison, 592 S.W.2d 181, 183 (Mo.App.1979), and failure of that court to dispose of property brought before it, as in Schulz v. Schulz, 612 S.W.2d 380, 381 (Mo.Ap...
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