Reed v. Reed, WD

• Decision Date: 01 August 1989
• Docket Number: No. WD,WD
• Parties: Carol Diann REED, Appellant, v. Tim REED, Respondent. 41174.
• Court: Missouri Court of Appeals

Page 326

775 S.W.2d 326

Carol Diann REED, Appellant, v. Tim REED, Respondent.

No. WD 41174.

Missouri Court of Appeals,

Western District.

Aug. 1, 1989.

Michael P. Swisher, Kansas City, for appellant.

Robert D. Crawford, Carrollton, for respondent.

Before GAITAN, P.J., and MANFORD and ULRICH, JJ.

GAITAN, Presiding Judge.

Appellant, Carol Diann Reed, appeals the judgment rendered in the dissolution decree against respondent, Tim Reed. She alleges that the trial court erred in its division of marital property, award of child support and attorney fees. We affirm the judgment of the trial court in part and reverse and remand in part.

Carol and Tim were married March 10, 1973, in Carrollton, Carroll County, Missouri, and lived together continuously from that date until their separation on September 17, 1987. During the fifteen year marriage, there were two children born of the marriage, namely Stephanie Renee Reed, born August 19, 1978, and Tiffanie Ann Reed, born March 27, 1985. At the time of their separation, the parties resided at 4470 South Ridgecrest, Springfield, Missouri. Carol moved herself and the two children to Carrollton, Missouri to live with her parents on September 17, 1987, and remained there until she and the children returned to Springfield, Missouri on May 16, 1988.

Carol is employed at Tiger Steel Corporation in Springfield, Missouri, in purchasing and inventory. Tim is employed at AT & T in Springfield, Missouri as a computer technician. At the time of trial, Carol earned $1,376 gross income and $1,040 net income per month. Her monthly expenses were $2,135.95. Tim's gross wages from January through June 11, 1988 were $17,350.17. For the calendar year 1986, Tim's annual gross wages were $37,426.40. During 1987, his annual gross wages were $37,202. As of the date of trial, Tim's gross pay every two weeks was $1,278, having received a raise in June 1988 or $33,228 annually. His monthly expenses were $1,538.12. The difference in the 1987 and 1988 incomes are apparently attributed to overtime pay in 1987.

Carol had requested that child support be retroactive to the date on which the Motion for Temporary Child Support, Maintenance and Attorneys' Fees was filed on April 4, 1988. In addition, she sought an award of maintenance in the amount of One Dollar ($1) per year.

At the time of the trial, Carol did not have, and testified that she never would have, any kind of retirement or pension plan at Tiger Steel Corporation. During the seventeen years that Tim was employed by AT & T, a contribution was made to the AT & T Savings Plan by deductions from his paychecks from between $35 per pay period to $70 per pay period. On or about May 6, 1988, Tim received $18,000, less taxes in the amount of $1,183.63, from the AT & T Savings Plan. Tim received a check in the amount of $16,316.37 as a result of this distribution. When the parties separated on September 17, 1987, Carol withdrew $1,800 from the parties' joint savings account.

From this Savings Plan distribution, Tim testified that he did the following: (1) paid the 1987 Federal and State Taxes in the amount of $2,554; (2) withheld $5,040 to allegedly pay taxes on the distribution; (3) paid the tax return preparation fee of $100; (4) paid MasterCard in the amount of $580; (5) paid Grolier Enterprises for World Book Encyclopedias in the amount of $250; (6) paid $1,842 in payments on the 1985 Oldsmobile; (7) paid a down payment on his new 1988 Chevrolet Pickup Truck in the amount of $2,500, sales tax on the purchase of the truck in the amount of $802, payment of a camper shell for the new truck in the amount of $718; (8) paid 1987 property taxes in the amount of $105; and (9) made payment of $46 in interest charges on a $3,000 loan to pay taxes. Tim further testified that, after the withdrawal of the $18,000 there was probably a couple thousand dollars left in the Savings Plan. He admitted that the amount which he had been withholding for taxes on the withdrawal from the Savings Plan, $5,040, did not take into account what the AT & T records showed as being a taxable distribution and the amount of tax already withheld by AT & T.

As a result of his employment with AT & T, Tim Reed receives a service pension, which is non-contributory and available after thirty years of service or sixty-five years of age, and a non-contributory deferred vested pension in which he became 100% vested as of April 1, 1988. Tim began his employment with AT & T on June 7, 1971, and the parties were married March 10, 1973. Tim was not eligible as of the date of trial for the service pension.

Carol testified that she was unable to pay her attorneys' fees incurred as a result of the dissolution proceedings. Her agreement with the law firm of McCalley and Gorham was that she would pay an hourly rate of $60 for Mr. Gorham's time and $75 for Mr. McCalley's time. Carol incurred charges for the work that was performed in the dissolution proceedings in the amount of $2,343 for fees and $103.82 for expenses, for a total of $2,446.82.

The trial court ordered the parties to hold the two parcels of real estate as tenants in common, each owning an undivided one-half interest. Tim was ordered to make the monthly payments on the parties' Promissory Note secured by Deed of Trust against the family home located at 4470 South Ridgecrest, Springfield, Missouri. Effective September 1, 1988, Tim was to receive a credit against Carol's interest in the property to the extent of one-half of all payments made by him attributable to the note, real estate taxes and casualty insurance. The parties were ordered to each pay one-half of the property taxes attributable to the Nixa lot. Tim was given possession of the family home.

Carol was awarded the 1985 Oldsmobile Cutlass Salon, subject to the indebtedness to General Motors Acceptance Corporation; the 1987 Chevrolet Pickup Truck, with camper and C.B. Radio; all household goods, furniture, clothing, personal effects and other personal property in her possession; 42 shares of AT & T common stock; 3 shares of U.S. West, Inc.; 15% of Tim's AT & T Pension Plan upon Mr. Reed's retirement, if she is living at the time; and $3,000 cash from Tim.

Tim was awarded the new 1988 Chevrolet Four-Wheel Drive Pickup Truck with camper shell, subject to the indebtedness in favor of Springfield Telephone Company Credit Union; the 1979 Cheater 17 foot fiber-glass boat, trailer and all motors and accessories to the boat; all fishing rods, reels, sporting equipment and clothing; all household goods, furniture, clothing, personal effects and other personal property in his possession; 42 shares of AT & T common stock; 3 shares of U.S.West, Inc. common stock; and his AT & T Pension and Retirement benefits to the extent not awarded to Carol. In addition to the pickup truck awarded to him, Tim had the use of a company car. He was also ordered to pay Carol's attorney $500.

The trial court ordered Tim to pay child support of $112.00 per child every two weeks for a total of $224 every two weeks, beginning August 15, 1988. Both parties...