Davis v. Davis

50 S.W.3d 308, 2001 Mo. App. LEXIS 1190, 2001 WL 741209
CourtMissouri Court of Appeals
DecidedJune 29, 2001
DocketNo. ED 77737
StatusPublished
Cited by2 cases

This text of 50 S.W.3d 308 (Davis v. Davis) 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
Davis v. Davis, 50 S.W.3d 308, 2001 Mo. App. LEXIS 1190, 2001 WL 741209 (Mo. Ct. App. 2001).

Opinion

MARY RHODES RUSSELL, Judge.

Amy J. Davis (“Wife”) appeals from a judgment entered by the Circuit Court of St. Louis County, dissolving her marriage to Henry L. Davis (“Husband”). On appeal, Wife alleges the trial court abused its discretion in the division of marital property in that the court awarded Husband both the marital home and the rental home, leaving Wife without housing. We modify the judgment in regards to the awarding of the rental home to Husband in that the division of property ordered by the court constituted an abuse of discretion.

Husband and Wife were married on December 29, 1982. There were two children born of the marriage and at the time of trial, the oldest child was attending college out of town and the youngest child was a junior in high school. In March 1999, Wife filed a petition for dissolution of marriage and Husband cross-petitioned for dissolution. This case went to trial in September 1999 on Husband’s cross-petition for dissolution.

At the time of filing of the dissolution petition, Wife was employed at the rate of $10 per hour. At the time of trial, however, she had a different job earning $6.75 per hour and a net monthly take home pay of $1072. Husband was employed at all times at the base rate of $12.79 per hour and his net monthly take home pay was $1916.

The parties owned two parcels of real estate, their marital home valued' at $70,400 and a rental home valued at $30,000. There was a mortgage on the marital home in both parties’ names with a balance of $68,000. The rental home was encumbered by two mortgages. The first mortgage was solely in Husband’s name with a balance of $14,569, and the second mortgage was in both parties’ names with a payoff of $12,384. At the time of trial, Husband was living in the marital home with the parties’ daughter, and the rental home was leased to Wife’s sister for $430 per month. Wife was residing in a hotel.

The parties owned two automobiles. Husband drove a pick-up truck valued at [310]*310$6,000, which was unencumbered. Wife drove a Mazda valued at $9,000 with a $7,000 lien requiring monthly payments of $273.

Also classified as marital property was Husband’s pension and retirement plan without a present value, his employee stock ownership plan (“ESOP”) valued at $4,211, and ninety shares of stock valued at $900.

The parties accumulated debt during them marriage, including two joint credit card accounts with balances of $1,373 and $4,430. In addition, there was a Sears and JC Penney charge account, both in Husband’s name, in the amount of $1,640 and $101 respectively, for a total of $7,544.

After trial, the court withheld entering a decree of dissolution and instead entered an order stating that Wife had thirty days, or until October 30, 1999, to obtain a loan commitment in her name to refinance the rental home in the minimum amount of $26,953. That figure reflected the payoff on both mortgages in which Husband was a debtor. Wife was unable to obtain this loan.

Thereafter, the trial court entered its judgment dissolving the parties’ marriage. Husband was awarded both the marital home and the rental home, the pickup truck, the ninety shares of stock, 50% of the retirement and pension plan, and 50% of the ESOP. Husband was also ordered to pay the mortgages on both pieces of property as well as all of the accumulated debt. Wife was awarded the Mazda automobile, 50% of the retirement and pension plan, and 50% of the ESOP. She was also ordered to pay the lien on her automobile. Husband was awarded primary physical and legal custody of the parties’ minor children and Wife was given overnight visitation. The court did not award any child support or maintenance. Wife now appeals the court’s division of property awarding the rental home to Husband.1

Upon review of a decree of dissolution, the decision of the trial court will be affirmed 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The trial court is granted broad discretion in determining the distribution of marital property. Silcox v. Silcox, 6 S.W.3d 899, 904 (Mo. banc 1999). The trial court’s division of marital property need not be equal, but it must be fair. Id.

We will affirm the trial court’s decision as long as the division of property is not so unduly weighted in favor of one party so as to constitute an abuse of discretion. Id. at 904-05. “An abuse of discretion will be found only if the award is so arbitrary or unreasonable that it indicates indifference and lack of proper judicial consideration.” Id. at 905 (quoting Sola v. Bidwell, 980 S.W.2d 60, 66 (Mo.App.1998) (quoting McNeely v. McNeely, 935 S.W.2d 103, 104 (Mo.App.1996))).

In her sole point on appeal, Wife claims the trial court abused its discretion in its division of marital property in violation of section 452.330 RSMo 20002 in that Husband was awarded both the marital home and the rental home and Wife was thereby deprived of housing. Section 452.330 provides, in pertinent part:

1. In a proceeding for dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked [311]*311personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse such spouse’s nonmarital property and shall divide the marital property and marital debts 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 a spouse as a 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.

The first factor of section 452.330 requires the trial court to consider the economic circumstances of each spouse at the time the marital property is divided.

Wife does not dispute that Husband should be awarded the marital residence since he was granted custody of the children, but she argues that her economic circumstances justify an award of the rental home to her. Wife has been most recently earning $6.75 per hour and living in a hotel while Husband was making $12.79 per hour and living in the marital home. By awarding Husband the rental home, he was given an asset that was producing rental income in the amount of $430 per month, which covered the mortgage payments. Thus, the property’s equity was increasing at no cost to him.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Parciak v. Parciak
553 S.W.3d 446 (Missouri Court of Appeals, 2018)
Cohen v. Cohen
73 S.W.3d 39 (Missouri Court of Appeals, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
50 S.W.3d 308, 2001 Mo. App. LEXIS 1190, 2001 WL 741209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-davis-moctapp-2001.