Youngberg v. Youngberg, 26707.

• Decision Date: 30 June 2006
• Docket Number: No. 26707.,26707.
• Citation: 194 S.W.3d 886
• Parties: Debra Denise YOUNGBERG, Petitioner-Appellant, v. Lynn Eugene YOUNGBERG, Respondent-Respondent.
• Court: Missouri Court of Appeals

194 S.W.3d 886

Debra Denise YOUNGBERG, Petitioner-Appellant, v. Lynn Eugene YOUNGBERG, Respondent-Respondent.

No. 26707.

Missouri Court of Appeals, Southern District, Division Two.

June 30, 2006.

COPYRIGHT MATERIAL OMITTED

Randy J. Reichard, Lowther Johnson Attorneys At Law, LLC, Springfield, for Appellant.

Joseph D. Woodcock, Aurora, for Respondent.

PHILLIP R. GARRISON, Judge.

Debra Denise Youngberg ("Wife") appeals from a judgment dissolving her marriage to Lynn Eugene Youngberg ("Husband"). Wife contends that the trial court erred in dividing the marital property and debts, denying her maintenance, failing to recuse itself because of an appearance of impropriety, and in determining the amount of child support to be paid because of an error in calculating Husband's income.

Husband and Wife were married on February 7, 1992. Two children were born of the marriage: Lynnsey Jean Youngberg, born November 4, 1993, and Jessica Lynn Youngberg, born March 2, 1997. Wife had lived on and operated a 160 acre farm, ("the property") since 1982.¹ When Husband moved in with Wife he was self-employed in the business of "order buying," which consisted of taking farm equipment orders from customers and purchasing the equipment at auctions and sales. In time, Husband's business evolved from "order buying" into a salvage business ("the business"), which the parties ran on the property and which, within a couple of years after the marriage, took the place of the farming business as the parties' primary source of income. Husband ran the business, while Wife assisted in loading and unloading the parts, answering the telephone, and helping customers.

The parties separated on or about February 19, 2003, and Wife filed her petition for dissolution of marriage on March 10, 2003. At the trial, the court received in evidence a report from Jerry Glor ("Glor"), appointed by it to appraise the business. He valued the real property at $240,000, the inventory at $211,846, and he also assigned a "business value" of $50,000 to the business. The trial court entered its judgment from which Wife brings this appeal. In its judgment, the trial court denied Wife maintenance, awarded her child support and divided the marital property and debts. In doing so it held:

[A]s set forth in [Husband's] Exhibit 5. . . [Wife] is awarded $8,000 in personal property and [Husband] is awarded $491,725[] in marital real estate and personal property.² [Husband] is further ordered to pay the marital debts and accounts payable . . . totaling $473,681.³ Judgment is entered in favor of [Wife] and against [Husband] for one-half of the difference in the sum of $5,022[]. The Court further awards [Wife] judgment against [Husband] in the sum of $5,000[] so that she can update her motor vehicle.

We will affirm a trial court's dissolution decree unless it is not supported by substantial evidence, is against the weight of the evidence, or it erroneously declared or applied the law. In re Marriage of Michel, 142 S.W.3d 912, 917 (Mo.App. S.D.2004). In conducting this review we view the evidence in the light most favorable to the decree. Id. at 918. Furthermore, we defer to the trial court regarding credibility determinations and assigning weight to witness testimony. Long v. Long, 135 S.W.3d 538, 542 (Mo.App. S.D.2004). The trial court is free to believe all, none, or part of the testimony of any witness. Id.

POINT I

Wife first argues that the trial court's division of property was unjust in that (A) the court failed to place a value on the business other than for the inventory and real estate; (B) the inventory of the business was undervalued; (C) a debt attributed to Husband was not legitimate or was overstated; (D) one debt, amounting to $16,000, was counted twice in Husband's favor; and (E) these errors prejudiced Wife.

The trial court has broad discretion in identifying, assigning value to and dividing marital property. Long, 135 S.W.3d at 542. We will only disturb the court's judgment if its decision "is so unduly weighted in favor of one party that it amounts to an abuse of discretion." Id. An abuse of discretion only occurs when the judgment 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." Id. (quoting In re Marriage of Holden, 81 S.W.3d 217, 225 (Mo.App. S.D.2002)).

Failure to Place a Value on the Business other than on the Inventory and Real Estate

Wife argues that the trial court erred in failing to include a $50,000 "business value" (or value of the business as a going concern) in its determination of the overall value of the business, because Glor's appraisal included that amount. However, the trial court did not adopt the appraisal as a whole, rather it only discussed and adopted the appraisal regarding the value of the real estate and inventory. The trial court did not discuss "business value" in its judgment. We presume that the trial court "considered the relevant factors and evidence and determined the facts in accordance with the judgment." Greiner v. Greiner, 146 S.W.3d 442, 452 (Mo.App. W.D.2004); see also Rule 73.01(c).⁴

In this case, Husband testified about changes in the agricultural community and the diminished profitability of the salvage business. He also discussed environmental problems caused by the storage of old farm equipment including oil and grease leaks as well as leaking batteries. The trial court could have concluded from this testimony that the business had no value outside of the real estate and inventory. An owner's testimony is competent evidence of value. In re Marriage of Denton, 169 S.W.3d 604, 609 (Mo.App. S.D. 2005).

Wife argues that since Glor's appraisal included a "business value" of $50,000, and the trial court used that appraisal's valuations as to the real estate and the inventory of the business in its division of marital property, it should have also included the $50,000. Whether the business had any value outside the real estate and inventory is strictly a question of fact, depending largely upon the trial court's view of the testimony, which it was free to believe in full, in part or not at all. Long, 135 S.W.3d at 542. As noted above, we defer to the trial court's determinations as to witness credibility. Id. Therefore, this portion of Point I is denied.

Husband's Debt to His Father

Both Husband and his father testified that Husband owed his father $104,186. There was also testimony that at one time the outstanding amount due on the loan was nearly double that amount, but Husband had been repaying his father over a period of years. In addition, Father kept detailed records of the debts Husband owed and the payments he had made, which were received in evidence. This was sufficient evidence, if believed by the trial court, to demonstrate a valid debt. See In re Marriage of Elliott, 179 S.W.3d 323, 326 (Mo.App. S.D.2005) (testimony by both husband and his mother that payments made by her to the parties totaling $150,236, and the checks she wrote to husband were sufficient evidence to support trial court finding there was a bona fide loan was made to the marriage).

Wife argues that because there was no promissory note, and because neither Husband nor his father were aware of the total amount owed until a few days before trial, there was not substantial evidence of a bona fide loan. While, the trial court may have been justified in agreeing with Wife, this evidence does not compel it to do so and Wife fails to cite any case that holds otherwise, or explain the absence of such authority. Whether a debt is considered a gift or a bona fide loan to the marriage is "purely a question of fact, depending for the most part on the credibility of the witnesses." In re Marriage of Michel, 142 S.W.3d at 922 (quoting Cole v. Cole, 633 S.W.2d 263, 265 (Mo.App. W.D. 1982)). Because we defer to the trial court's determinations as to the credibility of the witnesses, this portion of Point I is also denied.

The Value Placed on the Inventory

Wife argues, and Husband concedes, that the trial court erred in failing to include $4,450 worth of inventory in its valuation of the business assets. Husband agrees that he purchased two Peterbuilt trucks for $3,500 each, a mower at $250, and a grain bed at $200 prior to trial, which were not included as inventory owned by the business in Glor's appraisal. Both parties also agree that "a dozer" was sold for $3,000, which was included in Glor's inventory appraisal prior to trial. They also agree that these changes to the inventory demonstrate that the trial court undervalued the business by $4,450. Wife correctly points out that property is to be valued as of the date of trial. Elrod v. Elrod, 144 S.W.3d 373, 379 (Mo.App. S.D. 2004). Therefore, we understand both parties to agree that $4,450 should be added to the value of the business' inventory.

In addition, Wife argues that the appraisal failed to account for "two torch carts and three semi-trailers," which she videotaped on the property at the time the parties separated in March 2003. Although that videotape was admitted as evidence and played at trial, Wife testified that she did not know what happened to the two torch carts and that while the three semi-trailers were present in the video they were not included in the appraisal.

Husband points out that no other evidence was presented to suggest that those items that were present in the videotape in March 2003 were still part of the businesses inventory when Glor conducted his appraisal in June 2004. However, Husband did testify that, other than the items (discussed above) he conceded were purchased by the business after Glor conducted his appraisal, everything owned by the business at trial was included in that appraisal. Husband and Wife presented the trial court with differing accounts regarding the accuracy of Glor's inventory appraisal, either of which the...