Ray v. Ray

• Decision Date: 24 May 1994
• Docket Number: No. WD,WD
• Citation: Ray v. Ray, 877 S.W.2d 648 (Mo. App. 1994)
• Parties: Clifford H. RAY, Appellant, v. Lavonne Ann RAY, Respondent. 47949.
• Court: Missouri Court of Appeals

Page 648

877 S.W.2d 648

Clifford H. RAY, Appellant, v. Lavonne Ann RAY, Respondent.

No. WD 47949.

Missouri Court of Appeals Western District.

Submitted April 20, 1994.

May 24, 1994.

Motion for Rehearing and/or Transfer to Supreme Court Denied June 28, 1994.

Douglass F. Noland, Liberty, for appellant.

John R. Shank, Jr., Kansas City, for respondent.

Before SMART, P.J., and KENNEDY and ULRICH, JJ.

SMART, Presiding Judge.

Clifford Ray appeals from a judgment in a dissolution case. Appellant contends that the trial court erred in the property distribution by ordering an unduly disproportionate distribution. He also argues that the trial court erred in certain calculations.

Judgment is affirmed in part and reversed and remanded in part.

Clifford Ray ("Husband") and LaVonne Ray ("Wife") were married on June 7, 1981 and separated on February 17, 1992. The parties did not have any children together, but Husband had two children from a prior marriage and Wife had one child from a prior marriage. All three children lived with the parties during most of their marriage.

Husband is fifty-eight years old and works for the Kansas City School District as a stock handler in the warehouse. Husband has worked for the District for 5 years and his net take home pay equals approximately $860.00 per month. Husband testified that he has monthly living expenses of $1,041.52. Wife is fifty-three years old and worked full-time during most of the marriage. She had a degree in accounting and has worked as a bookkeeper. In the fall of 1991, Wife suffered from severe depression and was hospitalized for approximately 12 days. She later went to St. Louis to stay with her sister and was again admitted to the hospital for approximately two weeks. After returning to her home in Liberty, Wife did not return to work.

While Wife was in St. Louis, Husband liquidated marital savings bonds. When Wife returned from St. Louis, Husband left the marital home and moved in with his ex-wife, daughter and grandson. Husband cashed a marital IRA after moving from the house.

The trial court valued the parties' marital home at $82,000.00 and found it was subject to a $10,000.00 mortgage. Wife contributed $43,500.00 of non-marital property for a down payment for the purchase of the house. Husband agreed that Wife should receive her contribution back out of the house. Wife testified that she planned to remain in the marital home. The trial court deducted an eight percent real estate commission from the value of the house and found that the marital equity in the home equalled $18,000.00. The trial court then awarded the house in its entirety to Wife.

The trial court valued the marital property at $45,700.00. Husband was awarded $1,700.00 in personal property and $6,400.00 for an IRA and retirement accounts. Wife received $6,700.00 in personal property, $18,000.00 equity in the house, and $12,900.00 for an IRA. In dividing the marital property between the parties, the trial court took into consideration the fact that Husband had cashed savings bonds and a marital IRA after the separation. The trial court set aside each party's non-marital property. Husband's non-marital property consisted of $1,400.00 in personal property, an IRA valued at $29,000.00 and a $13,000.00 interest in real estate derived from a prior decree of dissolution. Wife's non-marital property consisted of $185.00 in personal property, CD's valued at $52,769.00 and $47,600.00 equity interest in the home. Additionally, the trial court ordered each party to pay his or her own attorney's fees and declined to order maintenance to either party. The trial court noted that Wife was in need of maintenance, but that Husband was not able to pay it. Husband appeals from the trial court's order.

Marital Funds Spent by Husband

First, Husband asserts that the trial court erred in determining that Husband's distribution should be reduced in consideration of $15,000.00 of marital funds which he spent during the marriage. Husband contends that no substantial evidence was presented supporting the $15,000.00 amount or supporting the notion that Husband had squandered the assets. Husband testified at trial that the funds were used for living expenses and the payment of taxes. He said it was also to pay debts for living expenses which were incurred prior to the separation. Review of this court-tried case is governed by the standard set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and the trial court's decision must be affirmed unless it is unsupported by substantial evidence, against the weight of the evidence, or misstates or misapplies the law.

Both parties concede that the amount of funds that Husband liquidated after the parties' separation did not equal $15,000.00. Wife claims the amount is between $10,100.00 and $11,800.00. Husband claims the amount is between $7,400.00 and $8,600.00. In the dissolution decree, the trial court simply states "That Petitioner has heretofore received approximately $15,000.00 in marital assets which have been cashed in or otherwise expended, for which Petitioner should bear sole and absolute liability of any tax considerations related thereto." From the bench, immediately following the hearing, the trial court made the following comments about the funds expended by Husband:

Petitioner on his own chose to cash in a sizable amount of CD's and an IRA that according to the evidence total somewhere near $15,000.00. He should be responsible for the liability that's going to be assumed for that. The record should also reflect that I've taken that into consideration when I set off the house and the equity to the respondent. Because even though the petitioner is only receiving some $8,100.00 in personal property and his IRA, I find that he received somewhere near $15,000.00 in CD's and an IRA that were marital property before he cashed them in. I don't see that the payment of utilities for even a few months would justify that. I am taking that into consideration in the division of property. In the event there is an appeal, in other words, I think it needs to be clear that I find that with the exception of the house, there is a fairly even division of property although the petitioner has pretty much taken his in advance in the CD's and the IRA. If you total those things up, you're going to find that they almost come out equal except for the $18,000.00 in equity in the house. I don't want you all to think that the respondent is walking out of here with everything. It just so happens that petitioner has already spent most of his money that he would have received.

The trial judge is in the best position to judge the credibility of witnesses and we defer to its credibility determinations. Grams v. Grams, 789 S.W.2d 846, 849 (Mo.App.1990). The trial court also has broad discretion in determining issues of squandering of assets. Cofer v. Price-Cofer, 825 S.W.2d 369, 373 (Mo.App.1992). From the trial court's comments, it is clear that it did not accept Husband's testimony about how he used the liquidated funds. This court is not entitled to second-guess the trial court's judgment of the credibility of Husband's testimony on this point. Thus, the trial court did not err in including the funds spent by Husband in the property distribution.

It is also clear from the trial court's comments that it considered the sum of $15,000.00 in making the property distribution. The record fails to supply an explanation as to how the court arrived at the $15,000.00 calculation. The logical assumption is that the trial court simply erred in a mathematical calculation as to the value of the marital IRA and the savings bonds. The trial court's use of that figure is not supported by substantial evidence. It would appear that this error involves several thousand dollars, and is therefore not "de minimis." Accordingly, the judgment is reversed as to the property distribution. The case will be remanded to the trial court to determine the specific amount of funds expended by Husband. This court does not disturb the trial court's decision to include the amount expended by Husband in the property distribution. After calculating the amount expended, the trial court...