Woolridge v. Woolridge

• Decision Date: 13 February 1996
• Docket Number: No. WD,WD
• Citation: 915 S.W.2d 372
• Parties: Evelyn Nan WOOLRIDGE, Respondent, v. Virgil E. WOOLRIDGE, Appellant. 50986.
• Court: Missouri Court of Appeals

Page 372

915 S.W.2d 372

Evelyn Nan WOOLRIDGE, Respondent, v. Virgil E. WOOLRIDGE, Appellant.

No. WD 50986.

Missouri Court of Appeals Western District.

Feb. 13, 1996.

Appeal from the Circuit Court of Jackson County, Thomas H. Newton, Judge.

Linda Faye Turley Dycus, Kansas City, for appellant.

Kenneth E. Jones, Kansas City, for respondent.

Before FENNER, C.J., P.J., and SPINDEN and SMITH, JJ.

SMITH, Judge.

The marriage of the parties was dissolved on March 20, 1995. The trial court, inter alia, awarded the parties joint legal custody of their unemancipated minor child with primary physical custody and child support of $75.00 per month to appellant. Although appellant was awarded physical custody of the parties' minor child, respondent was awarded the parties' marital residence with appellant awarded other assets in lieu of his marital interest in the residence. Appellant raises two points on appeal: 1) the trial court erred in awarding the marital residence to the respondent in that it misapplied § 452.330; and, 2) the trial court erred by awarding child support in an amount less than the amount calculated pursuant to Rule 88.01 utilizing Form 14 without first finding the calculated amount to be unjust or inappropriate. We affirm as to the award of the marital residence and reverse and remand with directions as to the award of child support.

Facts

Appellant and respondent were married on July 16, 1970. Immediately after marriage, appellant and respondent resided at 11812 Drury, Kansas City, Missouri. Eight years prior to the parties' marriage, in 1962, appellant personally built the home at this location. In 1975, five years into the marriage, appellant refinanced the marital home and jointly titled the property.

Appellant and respondent have one minor child, Matthew, born March 6, 1980. In 1991, appellant and respondent began experiencing marital difficulties. Some time that same year, appellant and Matthew moved into a room separate from respondent. They also ate and washed their clothes separately from respondent.

In June of 1993, appellant and Matthew moved out of the marital home. On September 9, 1993, respondent filed a Petition for Dissolution of Marriage seeking division of property, custody of the minor child, and child support. On October 27, 1993, appellant filed his Answer and Counter-Petition for Dissolution of Marriage also seeking division of property, custody of Matthew and child support.

At the time appellant built the marital home, the house and property were worth $26,000. The house and land were appraised at $33,500 at the time of refinancing. In January 1994, during the dissolution proceedings, the house and property were appraised at $68,000.

Appellant made all mortgage payments on the marital home, paid all the utilities, and bought groceries with marital funds until November 1993. Respondent's contributions to the marital home consisted of painting, wallpapering, refinishing a bathroom, and replacing a deck.

On March 7, 1995, the trial court awarded the parties joint legal care, custody and control of the minor child, Matthew, with actual physical custody to appellant. The court ordered respondent to pay appellant the sum of $75.00 per month as support of said minor child.

Both parties presented Income and Expense Statements, in addition to Form 14 worksheets pursuant to Rule 88.01. Both parties' Form 14's reflected appellant as the custodial parent. Appellant asked the trial court for child support in the amount of $181.00 per month based on his Form 14 worksheet. Respondent's Form 14 amount was $172.50 per month. In deviating from the Form 14 amounts calculated by the parties, the trial court did not make a finding on the record as to whether it determined the presumed correct child support amount pursuant to Form 14, and, if it did, whether it was rebutted as being unjust or inappropriate.

The trial court awarded the marital home to respondent and ordered her to refinance the unpaid balance owed on the home. Additionally, appellant was ordered to execute a Quit Claim Deed to transfer his interest in the home in exchange for certified funds in the amount of $19,000.

Standard of Review

Provisions in a divorce decree will be affirmed unless: 1) there is no substantial evidence to support it; 2) it is against the weight of the evidence; 3) it erroneously declares the law; or, 4) it erroneously applies the law. Hoffmann v. Hoffmann, 676 S.W.2d 817, 818 (Mo. banc 1984); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The party challenging a divorce decree bears the burden of demonstrating error. Cofer v. Price-Cofer, 825 S.W.2d 369, 373 (Mo.App.1992).

Points on Appeal

Point I. Award of Marital Residence

On his first point, appellant claims that the trial court misapplied the law in awarding respondent the marital home in that: 1) the trial court failed to consider the desirability of awarding the family home, or the right to live therein for reasonable periods, to appellant who was awarded custody of the parties' minor child pursuant to § 452.330; 2) the trial court failed to award appellant his non-marital portion of the family home as required by § 452.330; and, 3) the trial court failed to consider the contribution of appellant in the acquisition of the marital home as required by § 452.330.

Section 452.330, RSMo 1994, provides in pertinent part:

Disposition of property, factors to be considered.--

1. In a proceeding for dissolution of the marriage or legal separation ... the court shall set apart to each spouse his nonmarital property and shall divide the marital property in such proportions as the court deems just after considering all relevant factors including:

(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 the spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

An appellate court will only interfere with the trial court's decision in dividing marital property if "the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion." Dodson v. Dodson, 855 S.W.2d 383, 385 (Mo.App.1993). In dividing marital property, the trial court is vested with great flexibility and far reaching power, and no specific formula exists respecting the weight to be given to the factors required to be considered under § 452.330. Id.

We will address the claims under Point I in the order presented in appellant's brief.

A. Award to Custodial Parent

Appellant claims that in awarding the marital residence to respondent the trial court misapplied the law in that it did not take into consideration that he was the custodial parent as required by § 452.330. In support of his claim, appellant cites Henderson v. Henderson, 746 S.W.2d 99 (Mo.App.1988).

Section 452.330 by its clear terms does not mandate the award of the marital home to the custodial parent. It only requires the trial court to consider the desirability of awarding the home to the custodial parent and to weigh it along with the other factors enumerated. Appellant's reliance on Henderson is misplaced. In Reed v. Reed, 775 S.W.2d 326, 329 (Mo.App.1989), this court held that Henderson only recognized as a factor to be considered in awarding marital property the desirability of awarding the marital residence to the custodial parent, but did not mandate it.

There is nothing in the record to indicate that in awarding the marital home to respondent, the trial court did not take into consideration the desirability of awarding the marital home to the custodial parent. From the record it can be inferred that the trial court weighed that factor along with other relevant factors, including the fact that appellant was in much better financial shape than respondent; that an emancipated child, 18 year old Rebekah who was pregnant, was still residing in the home with respondent, both of whom had resided in the home for a long period of time; and, that both parties had contributed to the accumulation of equity in the home.

On this point, we find appellant failed to carry his burden to demonstrate that the trial court did not apply the law correctly and that its judgment was against the weight of the evidence.

B. Award of Nonmarital Interest

Appellant claims the trial court failed to award him part of the marital residence as nonmarital property as required by § 452.330. Appellant relies on Hoffmann v. Hoffmann, 676 S.W.2d at 825, and the "source of funds" rule adopted therein. Quoting from appellant's brief at page 10, "Although the property was retitled into the joint names of Father and Mother, the trial court was not precluded from applying the 'source of funds' rule." Appellant's belief as to the law is incorrect.

In Hoffmann the Supreme Court did adopt the "source of funds" rule for determining the character of property as either marital or nonmarital. Id. at 825. However, the adoption of the "source of funds" rule in no way abolished in Missouri the theory of "transmutation" which allows a spouse by agreement, either express or implied, or by gift, to transmute an item of nonmarital property into marital property. Kramer v. Kramer, 709 S.W.2d 157, 159 (Mo.App.1986); Stephens v. Stephens, 842 S.W.2d 909, 913-14 (Mo.App.1992). The "source of funds" rule and "transmutation" are not inconsistent with each other when determining the character of property, but come into play in different fact situations. Id. A spouse transmutes nonmarital into marital property by placing it in joint names. Id.

In this case, appellant readily admits that...