Rickard v. Rickard, 8723

• Decision Date: 21 May 1968
• Docket Number: No. 8723,8723
• Citation: 428 S.W.2d 919
• Parties: Patricia Jane RICKARD, Plaintiff-Appellant, v. Cliff Leroy RICKARD, Defendant-respondent.
• Court: Missouri Court of Appeals

Page 919

428 S.W.2d 919

Patricia Jane RICKARD, Plaintiff-Appellant, v. Cliff Leroy RICKARD, Defendant-respondent.

No. 8723.

Springfield Court of Appeals, Missouri.

May 21, 1968.

Ivella McWhorter Elsey, Springfield, for appellant.

Harold L. Henry, West Plains, for respondent.

TITUS, Judge.

By judgment entered March 17, 1967, the Circuit Court of Howell County awarded plaintiff a divorce, custody of the minor son born of the marriage, $100 a month child support, $1,200 attorney fees, monthly alimony of $400 and gross alimony in the sum of $20,000. Real estate, belonging to the parties as tenants by the entirety while husband and wife, was ordered partitioned as asked in Counts II and III of the petition. The court dismissed Count IV wherein plaintiff sought partition of 'certain items of personal property' of which 'she and the defendant are possessed.' V.A.M.R. 96.60; V.A.M.S. § 582.620. Motions of both parties for a new trial were overruled June 19, 1967. Only plaintiff filed a notice of appeal and, contrary to V.A.M.R. 82.04 and V.A.M.S. § 512.050, she erroneously appeals from the nonappealable order of June 19, 1967 overruling her motion for new trial, rather than from the judgment of March 17, 1967. Assuming plaintiff's good faith in attempting to appeal from the judgment, her appeal will not be discarded because of this infraction. In re E_ _, Mo.App., 416 S.W.2d 678, 679(1), and cases cited.

The decree of divorce, award of child custody, and allowance for child support and attorney fees have not been disturbed and have long since become final. Plaintiff's appeal concerns the collaterl and severable orders of the court nisi dismissing Count IV of the petition, 'in finding the Plaintiff entitled only to $20,000.00 gross alimony and failing to compel Defendant to give security therefor,' and 'in finding the Plaintiff entitled only to $400.00 per month alimony.' Beckmann v. Beckmann (en Banc), 358 Mo. 1029, 1035(4), 218 S.W.2d 566, 570(12), 9 A.L.R.2d 428. In both her pleadings and testimony, plaintiff petitioned the trial court for an allowance of monthly alimony (no stated amount) and gross alimony in the sum of $250,000. She now asserts 'the judgment of the trial court should be reversed and judgment entered for Plaintiff as prayed in her Amended Petition.'

Neither party gives succor to the patent and most perplexing problem in this cause. Absolute apathy and acquiescence of the contestants cannot clothe us with jurisdiction nor sate our duty to determine, ex mero motu, if we possess appellate jurisdiction. Kansas City v. Howe, Mo.App., 416 S.W.2d 683, 686(2--3); Farris v. Hendrichs, Mo.App., 410 S.W.2d 97, 98(2). Unfortunately a decision on this subject requires a partial recasting of the evidence, which we attend to forthwith.

The parties wed April 3, 1942, and one child, a son, was born September 25, 1951. The sole clue we have to the ages of the parties lies in an exhibit which notes December 31, 1925, as defendant's date of birth. We only assume plaintiff is approximately the same age as defendant. From this meager evidence we calculate the parties were 16 when married and 41 when divorced. The record is barren of any indication as to the extent of formal education to which either was exposed. History related in the testimony indicates previous illness of the plaintiff, but both plaintiff and defendant were in apparent good health at the time of the hearings in this case. Defendant was working with his father in a welding shop when the parties were married, but this 'wasn't too long. It was until he went into the army.' About five years after the nuptials the couple went to Mammoth Springs, Arkansas, where they 'ran the picture show' for plaintiff's father. They returned to West Plains in May 1952, and have since resided in that city. Plaintiff participated in operating 'the picture show' but otherwise has been unemployed except as a housewife. There is no evidence plaintiff has ever contributed financially to any businesses in which defendant is involved or toward the purchase of any property accumulated. She testified she had no separate funds or property of her own, but declared both in her verified petition and upon the witness stand that she and defendant owned the 'personal property' we shall delineate anon.

Thankfully we need not recount the record as to the alleged indignities committed by defendant which ostensibly prompted plaintiff to seek a divorce. It seems not amiss, however, to briefly observe the feebleness of plaintiff's proof is epitomized in the trial court's pronouncement prior to submission that, 'As I see this right now, I've got to leave this couple where they stand without a divorce.' Nevertheless, following judicial reminiscence on the testimony and a curial culling of the flood of exhibits which all but inundated the court, the divorce was granted.

Plaintiff vowed in Count IV of her petition that she and defendant were possessed of a one-third interest in a houseboat and airplane, a half interest in the Ozark Gas Company and a boat and boat motor, an interest (unspecified) in Lakeside Estates, Inc., approximately $700 worth of U.S. Savings Bonds, two automobiles, livestock, farm machinery, and 'homes, household goods in residence and farm home.' These items were enumerated in plaintiff's testimony in response to inquiries as to 'what properties do you and your husband own?' The rule and statute governing partition of personal property (V.A.M.R. 96.60 and V.A.M.S. § 528.620) provide, 'Any one or more of two or more joint owners of personal property, other than boats and vessels, may file a petition in the circuit court for a partition or a sale and partition of the proceeds thereof * * *.' Thus, by pressing her claim as to Count IV in both the trial and appellate courts, plaintiff champions herself to be a joint owner with defendant of the property. But extremely inconsistent with this position is plaintiff's urging that we charge defendant with having the sole possession and ownership of these assets when we consider the amount of gross and monthly alimony to which plaintiff might be entitled.

Ownership of U.S. Savings Bonds would be governed by the laws of the United States and regulations of the United States Treasury Department. Ison v. Ison, Mo., 410 S.W.2d 65, 68(1). We find nothing in the transcript which is positive proof of the existence of any bonds or as to the actual or approximate value of such bonds, if any. The statement in plaintiff's brief that defendant, or plaintiff and defendant, owned bonds of the approximate value of $700 cannot be accepted as a substitute for record proof. Landers v. Smith, Mo.App., 379 S.W.2d 884, 887(4). Certificates of title to the two automobiles would determine the legal owner or owners thereof. The certificates were not offered in evidence and the value of the vehicles was not shown.

The 'homes' alluded to by plaintiff in Count IV are explained in the record to mean the real estate owned as tenants by the entirety by the parties. These could not be subject to partition as 'personal property' under Count IV, but were ordered partitioned under the second and third counts of the petition. The record value of this real estate is $31,510, subject to an indebtedness of an undisclose amount on the residence in West Plains. If these properties sell for the values indicated, plaintiff and defendant will each receive $15,755, less whatever may be owed on the residence.

'Boats and vessels' are not subject to partition under Rule 96.60 and § 528.620, supra. Be that as it may, the one-half interest in the boat and motor wa valued at $750 to $1,000, while the worth of a one-third interest in the houseboat is placed at $100 to $133.33. Defendant was said to be 'half owner' of a small housetrailer, but no value is given for this item. The livestock and farm machinery are valued at $13,090.

Defendant and two other men operate Chart-Air Service, the sole asset of which is a $20,000 airplane upon which they 'owe $10,000 and some odd dollars.' The business has never made a profit in its six or seven years of existence. At the most, a one-third net interest in this venture would be worth $3,333.33.

Ozark Translator Systems, once managed by defendant and George King, had been sold before trial for $25,000. Only $5,000 of the sale price had been paid, and this went into escrow to defray the 'somewhere in (the) vicinity * * * of $9,000 owing by the corporation.' Mr. King testified, 'I don't know how many thousand dollars that Ozark Gas Company took out of Ozark Gas to put in the Translator System. That would have to be paid back to Ozark Gas.'

Defendant was one of four shareholders of Lakeside Estates, Inc. who on March 11, 1966 contracted to sell all the issued stock to Ozark Paradise Village, Inc. for $280,000 because 'we owed $100,000 which we couldn't pay on the property and taxes * * *.' After the outstanding obligations were satisfied, each of the selling shareholders realized $6,879.24 from the $130,000 paid on the contract. The balance is evidenced by a $150,000 promissory note bearing 6 1/2% interest, secured by a deed of trust, and payable in ten equal annual installments. A $15,900 payment had been made on the principal of the note, netting each payee $3,975. All told, each shareholder's receipt from this transaction had been $10,854.24 to trial time. Assuming full compliance with the terms of the note and estimating the interest the note would bear, a one-fourth interest in the note would yield approximately $4,665.50 per year for the next ten years. The only evidence regarding this instrument was that the payees had been unsuccessful in their efforts to sell the note and that it was not 'marketable.'

Plaintiff testified she and the defendant borrowed $5,000 from her mother 'to finance the purchase of the Best Gas Company' which is 'now the Ozark Gas Company.' The note given for this loan was assigned by plaintiff's m...