Buchheit v. Buchheit

768 S.W.2d 641, 1989 Mo. App. LEXIS 618, 1989 WL 31324
CourtMissouri Court of Appeals
DecidedApril 4, 1989
Docket55007
StatusPublished
Cited by14 cases

This text of 768 S.W.2d 641 (Buchheit v. Buchheit) 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
Buchheit v. Buchheit, 768 S.W.2d 641, 1989 Mo. App. LEXIS 618, 1989 WL 31324 (Mo. Ct. App. 1989).

Opinion

CRANDALL, Judge.

Husband, Kenneth L. Buchheit, appeals from the decree of dissolution of marriage from wife, Patricia F. Buchheit. We affirm.

Husband and wife were married on February 29,1984. They separated on July 22, 1986. At the time of the dissolution, wife was 41 years of age and husband was 40. No children were born of the marriage. Wife had a daughter who resided with the parties.

Husband and wife both worked for a state university. At the time of dissolution, wife was earning approximately $940 per month. Husband’s monthly earnings were about $1,116, plus $200 for a refrigeration rental business which he operated for the university. Husband also raised Apaloosa horses. During the marriage, he and wife resided in a house on husband’s parents’ farm for which they paid $100 per month in rent. Husband furnished considerable labor to make improvements to the parents’ farm incident to his horse business, with his parents purchasing the building materials for these projects. Husband supplemented his income by working as a carpet layer; but a back injury made it unlikely that he could continue to earn this extra money.

Husband admitted to having an extramarital affair with another university employee who worked in the same department as he and wife. He contended that the affair began only after the parties separated and wife filed the dissolution action. Prior to that time, husband asserted that he vras merely friends with the woman. At the time of dissolution, the woman with whom husband was involved was pregnant.

Wife testified that husband rejected her sexually. She also accused him of physically abusing her, of threatening her with physical abuse, and of throwing objects at her. All of these incidents occurred during husband's frequent outbursts of anger. Husband denied these charges.

During the marriage, wife left husband on several occasions for short periods of time. She was suspicious and jealous of husband’s relationships with other women.

In the decree of dissolution, the trial court found that husband’s conduct contributed substantially to the breakdown of the marriage. The court specifically noted *642 husband’s sexual misconduct and his mistreatment of wife. The court found that wife’s conduct was also a contributing factor to the breakdown of the marriage, but to a lesser extent than husband’s. The court set aside certain property as separate and divided the marital property as follows:

TO WIFE
1983 Ford Escort $ 3,800
Household goods 500
Personal goods 250 Cash 25
Tax Sheltered Annuity 500
5,075 1
Plus: money due from husband +6,000
TOTAL $11,075
TO HUSBAND
Horse trailer $ 300
Two Honda three-wheelers ($2,200 less $1,463 debt) 737
1986 Jeep ($13,000 less $11,309 debt) 1,691 2
Checking Account co
Checking Account
Savings Account cn
Household goods oi
Cash on hand
Tax Sheltered Annuity
8 Apaloosa Horses
9,752
Less: money owed to wife (6,000)
TOTAL $ 3,752

The court also ordered husband to pay $750 of wife’s attorney’s fees.

The standard of our review of a court-tried case is enunciated in the oft-cited Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). When there is a conflict in the evidence, the trial court determines the credibility of the witnesses. Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App.1983). The judgment of the trial court is to be affirmed under any reasonable theory supported by the evidence. Id. Deference is accorded the trial judge even if there is evidence which might support a different conclusion. Id.

Husband’s sole point on appeal is that the trial court abused its discretion in awarding wife an excessive percentage of the marital property. The record reflects that wife received 75 percent of the marital property in contrast to husband’s 25 percent.

In dividing marital property, the trial court is required to make a just, not equal, division. Golleher v. Golleher, 697 S.W.2d 547, 550-551 (Mo.App.1985). Section 452.330.1, RSMo (1986) 3 lists four nonexclusive factors to be considered in making a just division of marital property. The first factor is the “contribution of each spouse to the acquisition of marital property.” In the instant case, wife was employed outside of the home and made a direct monetary contribution toward family expenses. There was evidence that she also helped husband in his horse business.

The next factor is the “value of the property set aside to each spouse.” Here, husband was awarded eight Apaloosa horses which the trial court considered to be marital property in addition to several other horses considered to be husband’s separate property. These animals were essential to converting husband’s business of breeding his own horses into a profitable venture.

In addition, the fact that an award by the trial court results in one spouse receiving a considerably larger percentage of the marital assets than the other spouse is not per se an abuse of discretion. Cook v. Cook, 706 S.W.2d 606, 607-608 (Mo.App.1986). A percentage is not controlling or meaningful unless it is considered together with the nature and extent of the property divided. Klenke v. Klenke, 742 S.W.2d *643 621, 623 (Mo.App.1987). Here, the marital estate consisted primarily of personal property which had no income producing potential, save perhaps for the horses. The total value of marital property available for distribution was relatively small, less than $15,000.

The third factor to be considered in the division of property is “the economic circumstances of each spouse at the time the division of property is to become effective.” In the present action, although the parties’ salaries do not appear to be that disparate, husband’s salary was almost 19 percent greater than wife’s. In addition, for nominal rent, he resided on his parents’ farm and kept his horses there.

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Bluebook (online)
768 S.W.2d 641, 1989 Mo. App. LEXIS 618, 1989 WL 31324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buchheit-v-buchheit-moctapp-1989.