Vehlewald v. Vehlewald, 61865

• Decision Date: 18 May 1993
• Docket Number: No. 61865,61865
• Citation: 853 S.W.2d 944
• Parties: Donald R. VEHLEWALD, Appellant, v. Donna S. VEHLEWALD, Respondent.
• Court: Missouri Court of Appeals

Page 944

853 S.W.2d 944

Donald R. VEHLEWALD, Appellant, v. Donna S. VEHLEWALD, Respondent.

No. 61865.

Missouri Court of Appeals,

Eastern District,

Division Three.

May 18, 1993.

Robert E. Jones, St. Louis, for appellant.

J. Patrick Winning, David E. Woods, St. Louis, for respondent.

STEPHAN, Judge.

Donald R. Vehlewald ("Husband") appeals from the trial court's judgment which dissolved his marriage to Donna S. Vehlewald ("Wife"). We affirm.

Husband and Wife were married in August 1968. One child was born of their marriage, Lindsey Brooke Vehlewald ("Lindsey"), on April 21, 1982. The parties separated in the early part of 1991. Husband filed his Petition for Dissolution on March 8, 1991. Wife filed her Answer to Petition for Dissolution on April 12, 1991. On June 11, 1991, Wife filed a Cross-Petition for Legal Separation. On February 28, 1992, the trial court heard and denied Wife's Motion for Leave of Court to File an Amended Petition for Legal Separation.

After a hearing on March 20, 1992, the trial court granted Husband a Decree of Dissolution. That decree incorporated a stipulation whereby the parties agreed that the care, custody and control of Lindsey would be with Wife, subject to temporary custody and visitation rights in favor of Husband. The trial court ordered Husband to pay $1,700.00 per month as child support for Lindsey. The trial court, additionally, ordered Husband to provide and maintain medical, hospitalization and dental insurance on Lindsey. The trial court specified that any medical or dental expenses not covered by said insurance shall be paid fifty percent by each of the parties.

The trial court also ordered Husband to pay to Wife $870.00 per month as maintenance. The trial court, thereafter, divided the parties' marital property and debts. Finally, the trial court ordered Husband to pay Wife's attorney $6,000.00 as his fees, along with court costs.

On March 25, 1992, Husband filed a Motion for New Trial and/or to Amend Judgment. On April 6, 1992, the trial court denied Husband's Motion for New Trial, but it partially granted Husband's Motion to Amend Judgment. Specifically, the trial court ordered Wife to pay the existing debt to Twin Oaks Christian Academy, Lindsey's school, which was approximately $2,170.00. On April 21, 1992, Husband filed his Notice of Appeal.

Husband's first point is that the trial court erred in: (1) dividing marital property; (2) awarding Wife $1,700.00 monthly child support; (3) awarding Wife's attorney $6,000.00 as and for attorney's fees; and (4) awarding Wife $870.00 monthly maintenance. Husband argues that these awards are an abuse of discretion in that Wife failed to plead or prove marital misconduct or such other statutory factors that would support these awards. We will address each award separately.

First, Husband argues that the trial court erred in awarding Wife fifty-four percent of the marital property together with a lesser share of the marital debt. The division of marital property is governed by § 452.330, RSMo.Cum.Supp.1991. That statute requires a fair and equitable division of the marital property in light of the individual circumstances of each case, but does not require an equal division. In re Marriage of Stuart, 805 S.W.2d 309, 312 (Mo.App.1991). The trial court is vested with considerable discretion and we will interfere only if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. Id. We presume the correctness of the order prescribing the division. Bixler v. Bixler, 810 S.W.2d 95, 100 (Mo.App.1991). On appeal, the party challenging the division has the burden of overcoming the presumption. Id. Describing the award in terms of a percentage of marital assets is not meaningful unless considered together with the nature and extent of the property to be divided. May v. May, 801 S.W.2d 728, 734 (Mo.App.1990).

The trial court awarded Wife: (1) the family home, valued at $100,000.00; (2) a 1986 Volvo 740, valued at $8,000.00; (3) all accounts at Commerce Bank in her name, valued at $5,809.00; (4) all household goods, valued at $10,000.00; (5) the Mash Display SBA Loan, valued at $17,500.00; (6) fifty percent of Husband's IRA; and (7) an American Family Life Insurance policy on Wife's life, valued at $2,500.00. The trial court awarded Husband: (1) a 1984 Corvette, valued at $8,500.00; (2) a 1988 Mercedes, valued at $4,000.00; (3) Husband's interest in Mash Display Group, valued at $97,600.00; (4) the Alaska Meadows Partnership, value unknown; (5) fifty percent of Husband's IRA; (6) an American Family Life Insurance Policy, valued at approximately $6,000.00; and (7) a Home Federal Savings Account, valued at $110.00.

The division of the marital property that the trial court made is supported by the record. It takes into full account the economic circumstances of the parties. In re Marriage of Stuart, 805 S.W.2d 309, 312 (Mo.App.1991). Husband's adjusted gross income in 1989 was $137,218.00. Husband's adjusted gross income in 1990 was $114,599.00. Wife, on the other hand, is unemployed. The parties agreed at Lindsey's conception that they would raise Lindsey in a home where one parent remained full-time. Wife's only income is, therefore, what she receives in the form of child support and maintenance.

The division of property also takes into account the desirability of awarding the family home to an unemployed wife who has custody of a minor child. § 452.330.1(1), RSMo.Cum.Supp.1991. The award of the home to the custodial parent simply reflects an appropriate reluctance to uproot the custodial parent and child by requiring its sale. Mika v. Mika, 728 S.W.2d 280, 284 (Mo.App.1987). We note that Father argues that the equity in the marital residence provides Wife with a ready source of income, whether through its sale or a second mortgage. The parties' home is a non-income producing asset. May v. May, 801 S.W.2d 728, 734 (Mo.App.1990). The equity in the house, though substantial, does not provide a steady income and is not readily accessible since Wife must maintain a home for herself and Lindsey.

Finally, another factor to be considered is the balance between income and non-income producing property. Mika v. Mika, 728 S.W.2d 280, 284 (Mo.App.1987). Here, the trial court awarded Husband all of the income producing property, namely, his interest in Mash Display Group, Inc. Husband argues that it is he himself, not his minority interest in a closely held corporation, that represents his ability to produce income. We disagree. The stock in Mash Display Group is income producing whether it is the result of the fruit of Husband's labor or other shareholders in the organization. Considering all of these factors, we find that the trial court did not abuse its discretion in dividing the marital property. Husband's contention is, therefore, without merit.

Husband additionally argues that the trial court erred in assigning to him the "lion's share of the marital debts." Specifically, Husband argues that the trial court saddled him with fifty-three percent of the marital debts. Trial courts are not obligated to allocate marital debts. Johnston v. Johnston, 778 S.W.2d 674, 677 (Mo.App.1989). It, however, is a commendable practice and serves to eliminate future dissension between the parties. Id. Debts of the spouses are not marital property. Id. However, the existence of the debt and who has the responsibility for paying the same is a factor the trial court should consider in a fair division of the marital property. Id.

Here, the trial court allocated all of the debts to either Husband or Wife. The trial court had that authority. W.E.F. v. C.J.F., 793 S.W.2d 446, 457 (Mo.App.1990). Just as we find no error in the trial court's division of the parties' assets, we find no error in its allocation of the parties' debts. Husband's contention is, therefore, without merit.

We note the Husband argues that without a finding a marital misconduct, the record will not support the disproportionate award of marital property and debts. We disagree. The trial court did make a finding of fact that Husband engaged in marital misconduct. However, there is no indication that the trial court took this factor into consideration in dividing the parties' marital property and debts. Moreover, regardless of whether Husband engaged in post-separation marital misconduct, the trial court's division of the parties' assets is not so unduly weighted in favor of Wife as to amount to an abuse of discretion.

Second, Husband argues that the trial court erred in awarding Wife $1,700.00 per month as and for child support. Specifically, Husband argues that marital misconduct is not to be considered when determining the amount of child support pursuant to § 452.340, RSMo.Cum.Supp.1991. Even if Husband engaged in post-separation marital misconduct, there is absolutely no indication in the record that the trial court considered this evidence in determining Husband's child support obligation. Husband's contention is, therefore, without merit.

Third, Husband argues that the trial court erred in awarding Wife's attorney $6,000.00 as and for his attorney's fees. Specifically, Father contends that Wife failed to plead or prove marital misconduct or such other statutory factors that would support this award. In a dissolution action, the trial court has broad discretion in awarding or denying attorney's fees. § 452.355, RSMo.Cum.Supp.1991; In re Marriage of Gourley, 811 S.W.2d 13, 22 (Mo.App.1991). The award will be disturbed on appeal upon a showing that the trial court abused its discretion. In re Marriage of Gourley, 811 S.W.2d at 22. The court must consider all relevant factors, including the resources of both parties. Mika v. Mika, 728 S.W.2d 280, 285 (Mo.App.1987). The trial judge is considered an expert in the necessity, reasonableness and value of attorney's services. May v. May, 801 S.W.2d 728, 734 (Mo.App.1990).

Wife's...