Salcedo v. Salcedo, 48473
| Decision Date | 25 June 1985 |
| Docket Number | No. 48473,48473 |
| Citation | 693 S.W.2d 875 |
| Parties | Barbara A. SALCEDO, Respondent, v. Jose R. SALCEDO, Appellant. |
| Court | Missouri Court of Appeals |
Catalona & Sherry by Janet F. Catalona, Clayton, for respondent.
Todt and Walther by Charles P. Todt, St. Louis, for appellant.
Husband appeals from a decree of dissolution entered in the Circuit Court of St. Louis County and challenges the trial court's findings concerning income, maintenance, and the division of marital property. Husband contends that no substantial evidence supports certain of the trial court's findings, in particular: (1) that his net income was $73,688.00; (2) that wife derived only an indirect benefit from his use of certain insurance policy proceeds and his 1982 tax refund; and (3) that he could make $70,000.00 upon his retirement because his declining health may preclude future employment. Husband also contends that the trial court failed to follow the factors in § 452.335, RSMo 1978 in its award of maintenance to wife and that it improperly balanced the factors governing the division of marital property. We affirm.
The parties married in Tallahassee, Florida, on June 20, 1968, and separated on October 5, 1982. At the time of the hearing, they had been married fifteen and a half years and had three children, ages 14, 12, and 8. Husband has five children by a previous marriage. The record is silent concerning the ages of these five children and husband's attendant support obligation. Wife is thirty-six years old and currently unemployed. At the time she and husband married, she had three and a half years of college credit and was working toward a master's degree in English in order to obtain a teaching certificate. Husband is fifty-nine years old, received a medical degree from Tulane University and is a physician in the United States Army with the rank of colonel. He has been in the service from 1953 to the present, except for a break from approximately 1955 to 1964. He is currently the chief of the Health and Dental Clinic in the Department of Languages in Placedo, California.
After a two day hearing, the trial court entered its decree of dissolution on February 9, 1984, subsequently amended in part on March 9, 1984. In the decree, the court found the husband's net annual salary to be $73,688.00 and found him capable of earning $70,000.00 annually upon his retirement. Wife was awarded attorney's fees of $2,602.05 and costs of $385.04, thirty percent of husband's retirement pay, monthly child support of $300.00 for each child, and monthly maintenance of $500.00 for three years. The court ordered the family home sold with husband and wife to share equally in the proceeds after the indebtedness on the home was paid. The 1983 income tax refund was split with two-thirds payable to husband and one-third to wife. Husband was ordered to pay $4,705.00 for various credit card debts and $10,171.00 on a loan to the National Bank of Fort Sam Houston. The court set aside as wife's sole and separate property one small bedroom set ($50.00 in value) and a 1981 Plymouth Horizon having equity of $500.00 which she acquired by gift from her mother. She and husband each received non-income producing marital personal property which is not at issue on appeal; therefore, we need not recite its disposition. Husband's motion to strike the supplemental legal file and exhibits is hereby denied.
The standard of appellate review is clear. The trial court judgment is to be sustained unless there is no substantial evidence to support, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).
Husband's first point on appeal states no evidence in the record supports the trial court's finding of fact that husband had a net salary of $73,688.00. The trial court derived this figure by calculating that husband received gross monthly wages of $5,730.61 from which $1,256.61 was deducted for income and social security tax resulting in a net monthly wage of $4,474.00, or $53,688.00 yearly net salary. The judge added $20,000.00 to husband's annual net salary after finding that husband receives an annual bonus of $15,000.00 and a tax refund of $5,000.00.
Husband disputes the inclusion of the tax refund and the amount of the bonus in the computation of his net salary. Husband states the evidence did not show his annual bonus to be $15,000.00. Husband also contends the inclusion of $5,000.00 from his 1982 income tax refund as a fixed sum in his annual salary was erroneous because nothing in the record reflects that husband received that amount in the past or would receive that amount in future years. Instead of the trial court determination of $73,688.00, husband calculates his salary to be $61,703.00, derived by using $8,015.00 instead of $15,000.00 for his annual net bonus and by excluding the $5,000.00 income tax refund. Therefore, he determines his monthly disposable income to be $5,141.00, nearly $1,000.00 less than the trial court's calculation of $6,140.00.
In oral argument wife conceded that the transcript referred to an annual bonus of only $10,000.00 in gross, but that no evidence, other than husband's bare statement of a tax deduction from his bonus, supports husband's calculation of a bonus of only $8,000.00 after taxes. Thus, the computation of $15,000.00 as the bonus in husband's net annual salary is admittedly erroneous by at least $5,000.00 or as much as $7,000.00.
No evidence supports the trial court's inclusion of $5,000.00 from husband's 1982 income tax refund as an amount routinely accruing to husband's annual salary. The error in the inclusion of $5,000.00 from tax refunds as a portion of husband's annual salary becomes more apparent upon reflection that the trial court subsequently ordered husband and wife to file a joint 1983 income tax return and awarded one-third of the 1983 income tax refund to wife. The calculation of husband's 1983 annual net salary is in error if the total refund is less than $7,500.00; however, the total amount of the 1983 income tax refund is not in the record. Nothing in the record indicates the likelihood that the amount of husband's income tax refunds is constant from year to year. Therefore, we conclude the trial court's inclusion of $5,000.00 from income tax refunds as a component of husband's annual net salary is error. The trial court miscalculated husband's annual net salary by at least $5,000.00 for the bonus and $5,000.00 for the income tax refund. Husband's net annual salary, revised accordingly, approximates $63,688.00.
Despite any error in the trial court's calculation of husband's annual net salary, the maintenance and child support awards based on the revised salary figure are neither unreasonable nor without precedent. See In Re Marriage of Runez, 666 S.W.2d 430 (Mo.App.1983).
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