STIREWALT v. STIREWALT

• Decision Date: 13 April 2010
• Docket Number: No. SD 29974.,SD 29974.
• Citation: 307 SW 3d 701
• Parties: William Dixson STIREWALT, Appellant, v. Cheryl Ann STIREWALT, Respondent.
• Court: Missouri Court of Appeals

307 S.W.3d 701

William Dixson STIREWALT, Appellant, v. Cheryl Ann STIREWALT, Respondent.

No. SD 29974.

Missouri Court of Appeals, Southern District, Division One.

April 13, 2010.

John O. Russo, Mountain Home, AR, for Appellant.

Respondent did not file a brief.

ROBERT S. BARNEY, Judge.

Appellant William Dixson Stirewalt ("Husband") appeals the trial court's "Third Amended Judgment, Order and Decree of Dissolution of Marriage Nunc Pro Tunc" ("the Judgment"), which dissolved his marriage to Respondent Cheryl Ann Stirewalt ("Wife").¹ In two points of trial court error, Husband challenges the trial court's award of an equalization payment by him to Wife and the trial court's grant of "monthly, modifiable, and unlimited. . ." maintenance to Wife in the amount of $1,050.00 a month.

The record reveals the parties were married on September 28, 1991, and were separated in February of 2008. There were no children born of the marriage. Throughout the marriage, Husband was the owner of Dickey's Culverts, a distributorship for a culvert manufacturer, which he has owned for over twenty years. To supplement his income, in 2005 Husband began working as a part-time boilermaker for an out-of-town company and he averaged nine to eleven weeks of such work per year. At the time of the parties' marriage in 1991, Wife was employed with Burlington Northern Railroad and in 1992 she was injured in a work related accident. Thereafter, due to the injuries suffered in the accident, she received a personal injury settlement of approximately $380,000.00.² In 1998, Wife began drawing social security disability income and she now draws approximately $789.00 in disability payments per month.

On May 9, 2008, Husband filed his "Petition for Dissolution of Marriage," and Wife filed her answer on June 16, 2008. A trial was held on December 10, 2008. On September 18, 2009, the trial court entered the Judgment in this matter.³ At the conclusion of all the evidence, the trial court, inter alia, ruled that the parties' marriage was dissolved; divided the parties' non-marital and marital property as well as debts; adjudged that Wife should receive a $7,103.56 "equalization" payment to make up for the difference in the assets and debts awarded to each party; and that Husband was to pay to Wife $1,050.00 per month as "modifiable" maintenance for an "unlimited" amount of time. This appeal by Husband followed.

Our standard of review in dissolution of marriage cases is the same as that used for any court-tried case: we must affirm the trial court's decree unless it is not supported by substantial evidence, is against the weight of the evidence, erroneously declares the law, or misapplies the law. Vanderpool v. Vanderpool, 250 S.W.3d 791, 794 (Mo.App.2008); see also Rule 84.13(d).⁴ When reviewing a dissolution decree, we view the evidence in the light most favorable to the decision, In re Marriage of Taylor, 244 S.W.3d 804, 808 (Mo.App.2008), and the party challenging the decree "has the burden of demonstrating error." Id. "`A trial court is free to believe or disbelieve all, part or none of the testimony of any witness.'" In re Marriage of Pahlow, 39 S.W.3d 87, 90 (Mo.App.2001) (quoting In re Marriage of Thompson, 24 S.W.3d 751, 755 (Mo.App. 2000)).

In his first point relied on, Husband asserts the trial court erred in entering a judgment against him

in the amount of $7,103.56 for equalization of the parties' equity in their marital property because the assessment of Husband's total value of $14,341.86 and Wife's total value at a mere $134.74 amounted to an abuse of discretion in that the division was so unduly weighted in favor of Husband that it was unfair and inequitable given the weight of the evidence and Missouri law.⁵

A trial court is given broad discretion in dividing property, and we will interfere with its decision only if the division is so unduly weighted in favor of one party that it amounts to an abuse of discretion. Kirkwood v. Kirkwood, 77 S.W.3d 675, 680 (Mo.App.2002). The trial court abuses its discretion only when its ruling is "clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration." In re Marriage of Holden, 81 S.W.3d 217, 225 (Mo.App.2002). "The division of property is presumed to be correct, and the party challenging the division bears the burden of overcoming the presumption." Rivers v. Rivers, 21 S.W.3d 117, 123 (Mo. App.2000); see also In re Marriage of Ward, 955 S.W.2d 17, 21 (Mo.App.1997). Pursuant to section 452.330, in dissolving a marriage, the trial court awards each spouse his or her non-marital property, then divides the remaining marital property and debts in a reasonable manner after consideration of all relevant factors enumerated in section 452.330.⁶ See Rivers, 21 S.W.3d at 122; Kester v. Kester, 108 S.W.3d 213, 224 (Mo.App.2003). There is no set formula concerning the weight given to the factors considered under section 452.330. Kester, 108 S.W.3d at 224. It is clear that the "division of the marital property need not be equal, `but the division of the marital assets must be fair and equitable given the circumstances of the case.'" Travis v. Travis, 163 S.W.3d 43, 47 (Mo.App.2005) (quoting Jarvis v. Jarvis, 131 S.W.3d 894, 899 (Mo.App.2004)).

Here, after finding Husband had no non-marital property, the trial court awarded Husband $46,641.86 in marital property which included his truck; two trailers; a motorcycle; his equipment, money on hand, and interest in Dickey's Culverts; and miscellaneous smaller items. The following marital debts totaling $32,300.00 were also allocated to Husband: a debt to Century Bank of the Ozarks for $21,450.00 for his truck; a loan for Dickey's Culverts with Century Bank of the Ozarks for $2,250.00; and a debt owed to Thomas and Rosalie Williams for a motorcycle he purchased. The total value of property awarded to Husband after the subtraction for debts was $14,341.86.

Wife was awarded non-marital property in the amount of $13,700.00, which included the following: a 1929 T bucket valued at $2,000.00; a 1967 GMC Truck valued at $1,500.00; some antique jewelry valued at $10,000.00; an antique coin collection valued at $50.00; and some antique guns valued at $150.00. The trial court awarded Wife $9,756.74 in marital property, which included her personal vehicle, a trailer, a horse, money in several bank accounts as well as cash on hand, 2 John Deere tractors, some tools, numerous home furnishing items, a sewing machine, and other miscellaneous objects. The following debts in the amount of $9,622.00 were allocated to Wife: a debt to W.D. Grinkavitch, Wife's mother, in the amount of $5,150.00 for a loan given to Wife "to help Wife make it through the month and like buy hay and pay for attorney fees;" a debt to Maxine Linthicum in the amount of $1,000.00 which was borrowed by Wife in order to pay her attorney's retainer fee; a debt to her landlord, Karen Carpenter, for $2,675.00 in back rent; certain medical debts in the amount of $497.00; and a debt to WP Vet for $300.00. The total value of the property set aside to Wife was $134.74. The difference in the total value awarded to Husband and the total value awarded to Wife was $14,207.12. As a result, the trial court split that amount in half and ordered Husband to pay Wife an "EQUALIZATION PAYMENT" of $7,103.56.

As already stated, the division of marital property need not be equal, but it must be fair and equitable considering the circumstances of the case. Rawlings v. Rawlings, 36 S.W.3d 795, 797 (Mo.App.2001). In the present matter, the trial court ultimately awarded the parties the same amount of marital property and debts. They each received their personal vehicles as well as the personal property they requested and Husband received all of his interest, equipment, and other items relating to his business. While Husband had no non-marital property, Wife had a small amount of non-marital property composed mainly of family heirlooms which she asserted were not ever to be sold. The parties owned no real property to be divided and there were no children born of the marriage. It appears that the parties contributed equally to the marriage in that Husband worked throughout the marriage and Wife worked until her work related injury after which she stayed at home to care for the house. There is nothing in this record to suggest that the division of property and debts in the present matter was anything other than just and fair under the circumstances of this case and the five factors set out in section 452.330.1. We assume the trial court's division of property is correct and we find Husband has failed to meet his burden in overcoming that presumption. Rivers, 21 S.W.3d at 123. The trial court did not err. Point I is denied.

In his second point relied on, Husband maintains the trial court erred in "ordering him to acquire additional work in order to support the award of $1,050.00 of monthly maintenance. . . ." He argues there was insufficient evidence showing that he had additional work available as a boilermaker to support the imputation of income to Husband in the amount of $500.00 a month and he further contends Wife had sufficient property to meet her reasonable needs.

A trial court is afforded broad discretion in determining whether or not to award maintenance. Elrod, 144 S.W.3d at 380. The determination of whether to award maintenance under section 452.335.1 is a two-step procedure. In re Marriage of Moyers, 272 S.W.3d 500, 503 (Mo.App. 2008). "In the first step, section 452.335.1 requires the trial court to find that: (1) the party seeking maintenance lacks sufficient property, including marital property apportioned to that spouse, to provide for his or her reasonable needs; and (2) the party seeking maintenance is unable to support herself through appropriate employment." Elrod, 144 S.W.3d at 380. Once the trial...