Seggelke v. Seggelke

• Decision Date: 17 August 2010
• Docket Number: No. ED 92857.,ED 92857.
• Parties: Judith Ann SEGGELKE, Appellant,v.Raymond SEGGELKE, Respondent.
• Court: Missouri Court of Appeals

319 S.W.3d 461

Judith Ann SEGGELKE, Appellant,v.Raymond SEGGELKE, Respondent.

No. ED 92857.

Missouri Court of Appeals,

Eastern District,

Division Five.

Aug. 17, 2010.

COPYRIGHT MATERIAL OMITTED

Benicia Baker-Livoris, St. Charles, MO, for Appellant.

Jane E. Tomich, St. Charles, MO, for Respondent.

THOMAS J. FRAWLEY, Special Judge.

Judith Seggelke (“Wife”) appeals from a judgment dissolving her marriage to Raymond Seggelke (“Husband”). Wife claims the trial court erred in distributing the marital property and in failing to award her attorney's fees. We reverse and remand.

I. BACKGROUND

Husband and Wife married in 1968; there is one emancipated child of the marriage. Wife filed her petition for dissolution of marriage on July 12, 2006. On October 19, 2006, the trial court entered a consent judgment pendente lite (“PDL”). The PDL, in relevant part, awarded Wife $750 per month in maintenance, retroactive to August 1, 2006, to be paid from the marital funds in her possession. The PDL also stated that Wife's request for attorney's fees would be determined in the dissolution proceeding.

The dissolution trial was spread over two days in April and October, 2008. ¹ By the trial's conclusion, the parties had sold the marital residence and the marital farm and farm equipment. All sale proceeds were divided equally between the parties.

At the time of trial, Husband earned approximately $90,000 per year at his job with Boeing. Wife, then age sixty, was unemployed and requested $750 per month in maintenance until she became eligible for Social Security retirement benefits at age sixty-six. Wife further requested a disproportionate share of the marital property due to Husband's misconduct, which included several affairs during the marriage.

The trial court entered its judgment of dissolution of marriage on November 12, 2008. The court awarded each party his or her half of the proceeds from sale of the marital home, marital farm and farm equipment as separate property. The court denied Wife's request for maintenance but ordered Husband to reimburse her for half the maintenance payments made during the pendency of the dissolution proceeding from Wife's share of the proceeds from sale of the marital residence, which the trial court determined to be $6,000.

With respect to Husband's conduct, the trial court did not believe it warranted a disproportionate division of the marital property. The trial court's initial judgment awarded Wife approximately 51%, and Husband approximately 49%, of the marital property valued by the parties. Both parties filed after-trial motions and alleged numerous errors in the division of the marital property. The trial court entered an amended judgment that resulted in Wife receiving approximately 49% of the marital property valued by the parties. Wife filed a second after-trial motion, which was denied by operation of law. Wife appeals.

II. DISCUSSION

We affirm the provisions of a dissolution decree unless there is no substantial evidence to support them, they are against the weight of the evidence, or the trial court incorrectly declared or applied the law. Woodard v. Woodard, 201 S.W.3d 557, 560-61 (Mo.App. E.D.2006), and Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We note that the attorneys involved in the trial of this case are not the attorneys involved in the appeal. We further note that many key exhibits which would have been helpful to our understanding of the case were not provided in the record on appeal.

In her first point on appeal, Wife alleges trial court error with respect to distribution of the marital property in that the trial court failed to (1) adjust its division of the marital property after amending its initial judgment to eliminate the award to Wife of the non-existent GMAC 401(k) account; (2) enter judgment in accord with Husband's request that Wife receive one-half of his Boeing pension; (3) award Husband's stock and stock options received through his employment with APC to either party; and (4) take into account Husband's admitted marital misconduct. We agree not only that the division of marital property must be revisited in light of the court's error in “double counting” the GMAC 401(k) account but also that the value of Husband's pension, Wife's pension, and Seggelke and Pujji, Inc., LLC, must be determined and considered in the division of the marital property. Therefore, we reverse the trial court's judgment and remand for further proceedings.

When dividing marital property, the trial court must consider the factors set out in section 452.330 ² and then divide the property in such proportions as it deems just. Workman v. Workman, 293 S.W.3d 89, 96 (Mo.App. E.D.2009). Per section 452.330.1, the trial court must consider the following relevant factors:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; (2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (3) The value of the nonmarital property set apart to each spouse; (4) The conduct of the parties during the marriage ...

“However, the trial court may attach the amount of weight to each of these it deems appropriate, and these factors are not exclusive.” Skaggs v. Skaggs, 301 S.W.3d 72, 76 (Mo.App. S.D.2009) (quoting Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App. S.D.2001)). Thus, the trial court is vested with great flexibility in dividing the marital property. Id.

Wife first alleges that the trial court erred when it failed to readjust the distribution of the marital property after it removed the non-existent GMAC 401(k) account from Wife's share of the marital property. We agree.

The trial court's initial judgment included in Wife's share of the marital property a GMAC Fidelity Investments 401(k) account valued at $34,176.00. Wife filed a “Motion to Clarify and or Correct Judgment or in the Alternative Motion for a New Trial” which alleged that the trial court erred when it awarded her the GMAC 401(k) account because she had previously “rolled over” the account into the Allianz Alterity IRA (# DA313211), an asset also awarded to Wife.

In its amended judgment, the trial court admitted it erred in awarding Wife the now “rolled over” 401(k) account and removed it from Wife's share of the marital property. However, the trial court did not amend its judgment to adjust “the distribution of property to match what it had found to be equitable when it thought Wife was receiving approximately $35,000 more than she did.”

The trial court is not required to divide marital property equally Russum v. Russum, 214 S.W.3d 376, 384 (Mo.App. W.D.2007); rather, the distribution need only be fair and take into account the factors listed in section 452.330.1. Adair v. Adair, 124 S.W.3d 34, 39 (Mo.App. W.D.2004). The trial court found its initial division, which awarded Wife just over 51% of the marital property valued by the parties, to be fair; therefore, a reduction of over $34,000, which resulted in Wife receiving less than 49% of the marital property valued by the parties, due solely to the trial court's own error requires reconsideration of the division of the marital property.

Wife also asserts trial court error in its failure to award to her half of Husband's vested pension at Boeing because Husband asked the court during the trial to award Wife half of his pension and all of her own pension. “[O]ral agreements as to property division are binding when entered into in open court by parties represented by counsel and the agreement is ‘spread upon the record.’ ” Morse v. Morse, 80 S.W.3d 898, 904 (Mo.App. W.D.2002) (citing Carter v. Carter, 869 S.W.2d 822, 829 (Mo.App. W.D.1994)). Herein, as in Morse, the record reveals that the parties did not enter into a written agreement or binding stipulation concerning the division of Husband's pension; rather, Husband merely testified that he agreed to Wife receiving half of his pension at Boeing and all of her own pension at GMAC.

Neither party provided the court with the value of various items of marital property. The dissolution judgment lists several items with a value of “?” e.g., Husband's pension, Wife's pension, and Seggelke & Pujji, Inc., LLC. We sympathize with the dilemma facing the trial court, which was charged with effecting a fair division of the marital property, when the parties, who had an equal burden to present evidence of the value of the marital property Nelson v. Nelson, 195 S.W.3d 502, 507 (Mo.App. W.D.2006), failed to present that evidence.

Though not required to assign a specific value to each marital asset absent a properly filed request for findings pursuant to Rule 73.01, the record before the trial court must contain evidence from which the value of the marital property set aside to each spouse can be determined. Waldon v. Waldon, 114 S.W.3d 428, 431 (Mo.App. E.D.2003), and Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App. W.D.1999). Therefore, the trial court is directed to hold a hearing to determine the value of each party's pension ³ and Seggelke & Pujji, Inc., LLC,⁴ and thereafter effect an equitable division of the marital property following the guidelines of Section 452.330. See Hoecker v. Hoecker, 188 S.W.3d 497, 502-503 (Mo.App. W.D.2006).

Wife next asks this Court to name an owner of Husband's APC stock and APC stock options.⁵ The record reveals, however, that the trial court awarded the APC stock to Husband.

Husband testified that in 2007 he participated in a stock purchase plan with his employer's parent company which allowed him to buy up to two and a half percent of his salary in stock. The options terminated in 2007, and Husband testified that the stock was transferred to a Fidelity Investments account in his name. The trial court awarded that account to...