Weiss v. Weiss

• Decision Date: 07 January 1986
• Docket Number: No. WD,WD
• Parties: Barbara L. WEISS, Respondent, v. Elmer Leroy WEISS, Appellant. 36637.
• Court: Missouri Court of Appeals

Page 948

702 S.W.2d 948

Barbara L. WEISS, Respondent, v. Elmer Leroy WEISS, Appellant.

No. WD 36637.

Missouri Court of Appeals,

Western District,

Division Two.

Jan. 7, 1986.

Arthur H. Stoup, Shirley J. Swofford, Stoup & Thompson, Kansas City, for appellant.

Robert C. Paden, John W. Dennis, Jr., Paden, Welch, Martin, Albano & Graeff, P.C., Independence, for respondent.

BEFORE DIXON, P.J., and SOMERVILLE and NUGENT, JJ.

PER CURIAM.

A long-standing marriage of thirty-six (36) years was terminated under a petition for dissolution filed by the wife. Decretal provisions for maintenance, division of marital property, and attorney fees and costs of litigation incurred by the wife, coupled with an absence of specific findings of fact and conclusions of law by the trial court, prompted an appeal by the husband. The wife cross-appealed on the singular ground that the trial court erred in awarding her only 38.4% of the husband's Federal Civil Service Retirement System benefits.

More specifically, the charges of error leveled by the husband against the trial court, the order of which have been rearranged to facilitate a more cohesive discussion and disposition, are as follows: (1) in rejecting the husband's request for findings of fact and conclusions of law pursuant to Rule 73.01(a)(2); (2) in awarding the wife 38.4% of the husband's monthly benefits under the Federal Civil Service Retirement System upon his retirement; (3) in ordering the husband to elect optional survivor annuity benefits under the Federal Civil Service Retirement System and to designate his wife as beneficiary thereof; (4) in treating and dividing as marital property certain mutual fund accounts standing in the joint names of the husband and wife because they had been purchased with funds inherited by the husband; (5) in valuing the marital home at Seventy Thousand Dollars ($70,000.00) and ordering the husband to pay the wife Thirty-five Thousand Dollars ($35,000.00) within six months after the decree became final to effect complete division of the marital property; (6) in awarding the wife maintenance in the amount of One Thousand Two Hundred Dollars ($1,200.00) per month until the date of the husband's retirement; and (7) in ordering the husband to pay Thirteen Thousand Six Hundred Seven Dollars and Seventy-Seven Cents ($13,607.77) to the wife for attorney fees and costs of litigation which she incurred. The single point raised by the wife's cross-appeal, supra, will be discussed and disposed of contemporaneously with points (2) and (3) raised by the husband.

Appellate review of the respective issues is governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.App.1976): "[T]he decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is 'against the weight of the evidence' with caution and with a firm belief that the decree or judgment is wrong." Pertinent facts, consistent with the scope of appellate review, will be interspersed, where deemed necessary and appropriate, throughout disposition of the various issues raised.

Regarding the husband's first point, Rule 73.01(a)(2), insofar as here pertinent, provides as follows: "If any party so requests before final submission of the case, the court shall dictate to the court reporter, or prepare and file, a brief opinion containing a statement of the grounds for its decision and the method of determining any damages awarded; and may, or if requested by counsel, shall, include its findings on such controverted fact issues as have been specified by counsel." The bifurcated nature of this portion of Rule 73.01(a)(2), supra, is readily apparent. The first aspect addresses requests for the grounds of a decision by the trial court, while the second addresses specific requests for findings of fact by the trial court on specified controverted fact issues. Counsel for the husband, before final submission of the case, made a general request for both a statement of the grounds of the trial court's ultimate decision and a finding of facts in support thereof which was denied by the trial court. Regarding the latter aspect of Rule 73.01(a)(2), supra, no controverted fact issues were specified in the general request. Failure to do so negated any duty on the part of the trial court to make specific findings of fact. Dardick v. Dardick, 670 S.W.2d 865, 867 (Mo. banc 1984); In re Marriage of Burroughs, 691 S.W.2d 470, 473 (Mo.App.1985); Estate of Groves, 684 S.W.2d 925, 929 (Mo.App.1985); Snider v. Snider, 570 S.W.2d 770, 774-75 (Mo.App.1978); and First Florida Building, Inc. v. Safari Systems, Inc., 570 S.W.2d 728, 730 (Mo.App.1978). Regarding the first aspect of Rule 73.01(a)(2), supra, noncompliance by a trial court with a request for a statement of the grounds for its ultimate decision, although not condoned, does not ipso facto mandate reversal. Rule 73.01(a)(2), supra, as held in Lopez v. Vance, 509 S.W.2d 197, 204 (Mo.App.1974), is to be read in conjunction with Rule 84.13(b) which provides, inter alia, that "[n]o appellate court shall reverse any judgment, unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action." By way of a caveat, no one should harbour the belief that Rule 84.13(b), supra, automatically serves as an antidote for noncompliance with proper and timely requests pursuant to Rule 73.01(a)(2), supra. Otherwise, guidance to counsel both below and for purposes of appellate review, would be effectively dissipated. This court, however, in view of the adequacy of the record on appeal and in order to avoid judicial delay, is constrained to hold that the trial court's failure to honor the husband's request for a statement of the grounds for its ultimate decision did not materially affect "the merits of the action." Lopez v. Vance, supra.

Under points (2) and (3) the husband challenges that portion of the decree awarding the wife 38.4% of his benefits under the Federal Civil Service Retirement System "if, as and when received", and ordering him to elect optional survivor annuity benefits and designate his wife as beneficiary. The husband's rights under the pension plan were fully vested and matured at the time of trial as he was 57 years of age and had 41 years creditable service with the U.S. Postal Service. ¹ According to uncontradicted expert testimony, the present value of the husband's rights in the pension plan on an actuarial basis was $242,040.00. A portion of the husband's benefits under the pension plan, i.e., 12% thereof as determined by the trial court, was acquired by the husband before the marriage. After taking that factor into consideration, the trial court determined that 88% of the husband's vested and matured rights in the pension plan constituted marital property. The award of 38.4% of the husband's rights in the pension plan to the wife as her share thereof under the division of marital property was arrived at as follows. Under the Federal Civil Service Retirement System the husband had the option of electing a survivor annuity benefit whereby monthly benefits would be paid to his designated beneficiary after his death. The wife qualified under the Federal Civil Service Retirement System, even after dissolution of the marriage, as a beneficiary if so designated by the husband. ² Absent such an election, all monthly benefits under the husband's pension plan terminated upon his death. Election by the husband of a survivor annuity benefit would reduce the amount of monthly benefits the husband would draw during his lifetime upon retirement regardless of any amount apportioned to the wife. The trial court in its decree ordered the husband to elect the survivor annuity benefit and designate the wife as beneficiary. The trial court reduced the wife's share of the husband's pension plan deemed to constitute marital property from 44% to 38.4% to offset the reduction in monthly benefits that would occur by reason of election of the survivor annuity benefit. By doing so, upon retirement the husband's apportioned share of monthly benefits during his life under the pension plan would equal the amount he would have otherwise drawn if no survivor annuity benefit had been elected.

Mathematically, the decree entered by the trial court allocating 38.4% of the husband's pension plan to the wife and 61.6% thereof to the husband, and directing the husband to elect the survivor annuity benefit and designate the wife as beneficiary, appears to have been arrived at as follows. Absent election of the survivor annuity benefit, benefits upon retirement under the pension plan would amount to $2,576.00 per month. Conversely, upon election of the survivor annuity benefit, benefits upon retirement under the pension plan would amount to $2,287.00 per month. As previously noted, due to the husband's participation in the pension plan prior to his marriage, the trial court determined that 88% thereof constituted marital property. Using 88% as a starting base, the trial court tentatively determined that the wife was entitled to 44% of the husband's pension plan upon division of the marital property and that the husband was entitled to 56% of said pension plan. The difference between $2,576.00 per month in benefits under the pension plan if no survivor annuity benefit was elected, and $2,287.00 per month in benefits if there was an election, is $289.00 per month. Consequently, the "cost" to the husband of being ordered to elect the survivor annuity benefit and to designate the wife as beneficiary was $289.00 per month. The trial court determined that the wife should bear the "cost" of the husband being ordered to elect the survivor...