Balven v. Balven

734 S.W.2d 909, 1987 Mo. App. LEXIS 4313
CourtMissouri Court of Appeals
DecidedJuly 7, 1987
Docket52183, 52235
StatusPublished
Cited by20 cases

This text of 734 S.W.2d 909 (Balven v. Balven) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Balven v. Balven, 734 S.W.2d 909, 1987 Mo. App. LEXIS 4313 (Mo. Ct. App. 1987).

Opinions

KAROHL, Judge.

Both parties appeal from decree of dissolution granted on wife’s petition. Husband appeals the designation and division of marital property; award of maintenance; failure to designate and consider a bank account as marital property; failure to provide that maintenance terminates on death of wife; failure to require wife to join on a joint income tax return for pending year; and, award of partial attorney’s fees to wife. Wife appeals insufficiency of the award of maintenance and attorney’s fees.

The parties were married on September 26,1953. They raised two children who are grown and independent adults. Wife was a clerk-typist before marriage and a full-time homemaker until 1977. She then resumed employment outside of the home. She was employed full-time until 1980 when she reduced her hours to twenty-four hours per week. Her employer offered full-time work. However, she claimed reduced capacity because of an arthritis condition. Her earnings at the time of trial were $511 per month and fringe benefits including medical insurance, disability coverage, life insurance and an unvested retirement. She was fifty-one years old at the time of trial. She testified over objection that she suffers from bronchitis, pulmonary fibrosis and arthritis. Her doctors have not suggested that she quit work.

Husband was fifty-three years old at the time of trial. His career employment was as a phone installer and repairman for AT & T. He retired on October 31, 1985. He retired early because his work group was declared surplus after reorganization of AT & T. His employer offered a Supplemental Income Protection Plan (SIPP) to encourage early retirement for surplus employees. His gross retirement income at the time of trial was $1,353 per month which included $400 per month SIPP benefits. His after tax income was $1,085.95 per month. The duration of the SIPP benefits is four years. At the end of that period husband’s income will be reduced by $400 per month.

Parties stipulated the introduction of financial statements, subject to cross-examination. Wife’s monthly expenses of $1,217.60 per month did not include a monthly charge for housing, but did include $300 per month for food and $300 per month for recreation. She stated these were estimates of what she expects to spend and includes funds for entertaining and vacationing. Husband’s monthly expenses were $1,047 per month which included $340 for rent, $280 for food and $40 per month for recreation.

The parties owned, free and clear of any debt, a family home located on twenty acres in Franklin County, Missouri. This property was valued between $90,000 and $120,000 by the parties and $100,000 by the trial court. Both parties had separate bank accounts with balances of approximately $7,000 each, IRA’s worth $4,000 each. Husband held corporate stock worth $7,100; wife held stock worth $300.

On August 23, 1985, after the parties separated, wife transferred $3,000 to her [912]*912mother who then used the money to open a joint account with wife. Husband claimed this account to be marital property. Wife testified that the transfer was the repayment of loaned money and that the account belonged to her mother.

There was a dispute about an unfiled 1985 income tax return. Husband testified that a joint return would create a refund of several hundred dollars, but a separate return would increase his taxes, state and federal, by approximately $1,900.

The date of separation is relevant to wife’s claim of husband’s misconduct. She claims the parties separated in May, 1985. He claims a separation in July, 1984. Both agreed that wife moved from the master bedroom in July, 1984. Husband admitted he began dating a neighbor in February or March, 1985. Wife claims the affair caused the break-down of the marriage. Husband claims the break-down of the marriage and separate living arrangements occurred eight months before the affair.

The trial court entered a decree of dissolution on May 27, 1986. No comprehensive findings of fact were requested or made. The court set off separate property to the wife, awarded her the family home and acreage, an automobile, items of furniture, her corporate stock, IRA’s and bank accounts. He also granted wife $62.50 per week maintenance and $2,000 attorney’s fees on a request for $3,986.25.

The court awarded husband all items of household goods and personalty not specifically awarded wife, specified items of furniture, a 1983 pickup truck, tractor and accessories, corporate stock having a value of $7,188, bank accounts and two IRA’s.

The court determined that husband’s decision to retire was “unilateral” and that the SIPP “bonus” which lasts four years should be treated as an asset rather than income. The court then awarded the bonus to husband because wife received the real estate.

We first dispose of a matter that is not in dispute. During oral argument wife agreed that the decree may be amended so as to provide that maintenance terminate on death of wife. The importance of this addition may be found in the Tax Reform Act of 1984, 26 U.S.C.A. Section 71(b)(1)(D) relating to decrees entered after December 31, 1984.

The major problem confronting the court in the present case was the division of marital property. This problem was present because the principal asset of the marriage was the family home and land which the court found to have a value of $100,000. If the court properly considered the SIPP bonus as property then the division resulted in an award to wife of approximately 80% of the marital property. We need not decide that issue. It was not directly raised by the parties.

The division of marital property, according to the requirements of Section 452.330.1 RSMo 1986, is within the sound discretion of the trial court. Colabianchi v. Colabianchi, 646 S.W.2d 61, 64 (Mo. banc 1983). Appellate courts must defer to the trial court’s judgment unless the judgment is improper under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) or an abuse of discretion is shown. That section does not require specific findings of fact as to the value of items of marital property awarded in a dissolution decree. Dardick v. Dardick, 670 S.W.2d 865, 868 (Mo. banc 1984). Further, failure to assign values to marital property does not require reversal when neither party requests specific findings of fact and conclusions of law. Hardy v. Hardy, 632 S.W.2d 79 (Mo.App.1982). We have examined the record and conclude that there was sufficient evidence upon which the trial court could determine the value of the property distributed in the decree.

We do not find the award of the family home to wife to be an abuse of discretion under Section 452.330.1 RSMo 1986 on the basis that the designation of the SIPP bonus was a balancing asset. There was no dispute that husband was entitled to $400 a month for forty-eight months. Even if not marital property the court was entitled to consider the aggregate value as either marital property or future income when awarding it to hus[913]*913band. When measuring discretion or abuse of discretion it is the award and not the form of the award which may be considered.

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Bluebook (online)
734 S.W.2d 909, 1987 Mo. App. LEXIS 4313, Counsel Stack Legal Research, https://law.counselstack.com/opinion/balven-v-balven-moctapp-1987.