Carter v. Carter

436 S.W.3d 240, 2013 WL 1966384, 2013 Mo. App. LEXIS 573
CourtMissouri Court of Appeals
DecidedMay 14, 2013
DocketNo. ED 95337
StatusPublished
Cited by1 cases

This text of 436 S.W.3d 240 (Carter v. Carter) 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
Carter v. Carter, 436 S.W.3d 240, 2013 WL 1966384, 2013 Mo. App. LEXIS 573 (Mo. Ct. App. 2013).

Opinion

ROY L. RICHTER, Judge.

Nicholas B. Carter (“Husband”) appeals from the trial court’s Amended Judgment and Decree of Dissolution of Marriage dated June 2, 2010, inter alia, ordering Husband to pay monthly maintenance to Carolyn K. Carter (“Wife”) and dividing the parties’ property and debts. Husband challenges the validity of the trial court’s order, and the court’s orders regarding maintenance and the division of property and debts. We affirm in part and reverse and remand in part.

[241]*241I. BACKGROUND

Husband and Wife were married on June 23, 1990, in St. Louis City. Husband and Wife have three teenage children. On appeal, there are no issues relating to child custody or child support.

The parties separated on November 23, 2008, after a few years of discord and unpleasant behavior toward each other. Husband filed a Petition for Dissolution of Marriage in the Circuit Court of St. Louis County on December 2, 2008. Throughout the next year-and-a-half, litigation proceeded regarding the dissolution of marriage, the division of marital property and debts, and maintenance. On June 2, 2010, the trial court reviewed and accepted the findings and recommendations of the Family Court Commissioner and entered an Amended Judgment and Decree (“Amended Judgment”) dissolving the marriage, dividing the marital property and debts, awarding Wife maintenance in the amount of $4,200 per month, and ordering the sale of the marital residence.

On June 18, 2010, Father requested a rehearing, which was denied, and the Amended Judgment entered on June 2, 2010, was affirmed. This appeal now follows.

II. DISCUSSION

Husband raises three points on appeal. In his first point, Husband alleges the trial court entered an invalid Amended Judgment, in that the trial court failed to properly distribute the parties’ marital residence and, further, the trial court erred in ordering Husband pay 50% of the marital residence mortgage and utilities while also ordering Husband to pay Wife maintenance.

Second, Husband claims the trial court erred as a matter of law in awarding Wife $4,200 per month in maintenance for an unlimited, but modifiable, duration, because Wife’s reasonable needs included speculative and inconsistent expenses.

Finally, in his third point on appeal, Husband asserts the trial court erred in dividing the marital debts — specifically, the 2008 and 2009 state and federal income tax liabilities — by ordering Husband to pay 100% of said tax liabilities.

Point I — Sale of the Marital Residence

To begin, Husband alleges the trial court’s Amended Judgment was invalid because the court erred as a matter of law in ordering the sale of the marital residence, and the trial court abused its discretion in preserving common and joint ownership (between Husband and Wife) of the marital residence until sale, ordering Husband to pay 50% of the mortgage for the marital residence until sale, and ordering Husband to pay Wife maintenance (the maintenance calculation determining Wife’s reasonable needs included Wife’s 50% share of the mortgage for the marital residence).1

Standard of Review

In a dissolution of marriage case, this Court reviews the trial court’s judgment pursuant to the general principles set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). See Fisk v. Fisk, 81 S.W.3d 1 (Mo.App. E.D.2001). We will affirm the trial court’s judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Richmond v. Richmond, 164 S.W.3d 176, 178 (Mo.App. E.D.2005). We view the evidence and the reasonable inferences [242]*242therefrom in the light most favorable to the judgment. Neal v. Neal, 281 S.W.3d 330, 337 (Mo.App. E.D.2009).

Analysis

In the Amended Judgment the trial court ordered the marital residence be sold using a real estate agent to which the parties agreed:

In the event that the parties cannot agree as to the listing price or subsequent sale price, then the parties shall initially list the property for the sum of $405,000.00, and shall reduce the list price by the sum of $5,000.00 every three months until sold, except, however, the property shall not be sold for less than $360,000.00 unless agreed to by the parties.

Less than two months later, the trial court, in denying Husband’s Motion for Rehearing of

the Judgment, sustained the Amended Judgment with one caveat: the judgment should be modified to remove the provision that the property cannot be sold for less than $360,000 because that provision may make the property unsaleable in the current real estate market. The property should be sold at a reasonable price as may be recommended by the real estate agent hired by the parties.

We begin by noting, “[pjlacing the marital property in common ownership until a sale does not represent error ipso facto.” Thomas v. Thomas, 76 S.W.3d 295, 303 (Mo.App. W.D.2002); see also Colabianchi v. Colabianchi, 646 S.W.2d 61, 65 (Mo. banc 1983) (“In the [Missouri Court of Appeals,] Eastern District, ownership of marital property such as the family home in this case is allowed to remain as a tenancy in common after dissolution until the property’s disposition by sale.”). However, for a dissolution judgment requiring the sale of a marital residence to be enforceable, the judgment must specifically designate how the marital residence will be placed for sale, provide a time frame for selling, and any reasonable conditions upon the sale of the home as the trial court deems necessary. See Kelly v. Kelly, 340 S.W.3d 673, 676-78 (Mo.App. W.D.2011); Thomas, 76 S.W.3d at 304.

Here, the trial court failed to set a time limit for the sale of the home. As such, it is conceivable the marital residence could remain on the market indefinitely, especially in a housing market such as the one endured by the St. Louis region beginning in 2008. While the trial court’s order for the sale of the marital residence complied in all other respects, it, nevertheless, failed to designate a time period for how long the marital residence would remain on the market.

We find support for our holding in Kelly v. Kelly, 340 S.W.3d 673 (Mo.App. W.D. 2011). In that case, the trial court ordered the sale of the marital residence in almost identical fashion as the trial court ordered in the case at bar:

[T]he parties’ marital home ... shall be listed for sale with a realtor with a list or asking price of $240,000....

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Bluebook (online)
436 S.W.3d 240, 2013 WL 1966384, 2013 Mo. App. LEXIS 573, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-carter-moctapp-2013.