Friedman v. Friedman

965 S.W.2d 319, 1998 Mo. App. LEXIS 289, 1998 WL 60811
CourtMissouri Court of Appeals
DecidedFebruary 17, 1998
DocketNos. 70359, 70360
StatusPublished
Cited by10 cases

This text of 965 S.W.2d 319 (Friedman v. Friedman) 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
Friedman v. Friedman, 965 S.W.2d 319, 1998 Mo. App. LEXIS 289, 1998 WL 60811 (Mo. Ct. App. 1998).

Opinion

PUDLOWSKI, Judge.

In this appeal from a divorce action, Roger Friedman (Roger) alleges the trial court erred in its division of marital property between spouses, contending it was an abuse of discretion to award Sofia S. Friedman (Sofia) a large portion of marital property. Roger also alleges the trial court erred in classifying one thousand shares of stock as marital when they were purchased from allegedly separate funds located in a joint account, requiring Roger to pay part of the children’s college costs, awarding maintenance to Sofia, and awarding attorney fees to Sofia. Sofia cross-appeals, requesting larger maintenance payments over an unlimited tone period, and alleging the trial court erred in designating bank account funds as Roger’s separate property. We affirm in part and reverse in part.

I. Background

Sofia and Roger met in 1978 and were married in 1980. Roger has owned and operated his own business since 1977. Sofia moved to the United States from Russia in 1977, where she earned the equivalent of a Ph.D. in music. They have two sons: Sanford, Sofia’s son adopted by Roger, and Matthew, bom to the couple in 1984. After they were married, the couple enjoyed a comfortable lifestyle on the income from Roger’s business. While Sofia continued to teach piano lessons and work in her husband’s business, she was mainly a homemaker and did not work outside the home.

Sofia filed for divorce in 1990. The court found the marriage to be irretrievably broken, but did not ascribe serious marital fault to either party. It calculated marital property to be worth $661,929.00. The court awarded Sofia $504,589 and Roger $59,386 of the marital property. It calculated Sofia’s separate property to be worth $33,695 and Roger’s separate property as $1,124,562. Roger was ordered to pay maintenance to Sofia for five years at the rate of $2,500 per month, and monthly child support for Matthew of $800 in addition to two-thirds of Matthew’s private school costs and all his college costs.

A key item of marital property, awarded to Sofia, is a revocable trust (S & M Trust) designed to care for the educational needs of Matt and Sanford with Sofia as trustee. Sofia has unlimited control over the assets of the trust, including authority to invade the principal and pay funds to herself. She will become the beneficiary of the trust when Matthew reaches thirty. At the tone of trial, the S & M Trust had a portfolio value of $233,509. It constitutes a large portion of the $504,589 award to Sofia.

II. Division of Marital Property

In his first point on appeal, Roger complains he received only fifteen percent of the marital property. He alleges the trial court abused its discretion in its division of marital property because it failed to properly consider all the factors mandated by Section 452.330 RSMo (1994), and because it misconstrued the evidence so as to overemphasize the value of Roger’s separate property.

The trial court’s division is based on Section 452.330 RSMo (1994), which dictates that “the court shall divide martial property in such proportions as the court deems just” after considering several statutory factors.1 [322]*322The statute does not require that the division of property be equal, but only that it is fair in light of the circumstances of the individual case. Carter v. Carter, 940 S.W.2d 12, 16 (Mo.App. W.D.1997).

The trial court has wide discretion in making its determination, and only abuses its discretion if the award is heavily and unduly weighted toward one party. In re Marriage of Hash, 838 S.W.2d 455, 459 (Mo.App. S.D.1992). We may reverse the trial court’s determination only if it erroneously declares or applies the law, if it is against the weight of the evidence, or if it is not supported by substantial evidence. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Evidentiary and factual evaluations of the trial court receive considerable deference. In re Marriage of Fry, 827 S.W.2d 772, 775-76 (Mo.App. S.D.1992).

While the division of marital property was significantly weighted toward Sofia, we cannot say that the distribution was an abuse of discretion. The trial court properly considered the statutory factors.

First, Roger and Sofia’s differing economic circumstances support an award weighted more heavily toward Sofia. A court may divide marital property so as to provide future support for a formerly economically dependent spouse. Hash, 838 S.W.2d at 460. In the instant case, the trial court considered that Roger has significantly more separate property, and through his business, a large yearly income. Sofia’s separate property is made up of jewels and furs. Almost half of the value of the marital property awarded to Sofia is embodied by the S & M Trust. Though she may invade the principal of the trust, the primary purpose of the fund is to care for her children’s educational needs. Further, the court found that her musical talents and skills give her considerably less potential for future income than her former husband. Her earnings will largely result from her teaching piano classes — an occupation that nets her significantly less than Roger’s business dealings.

While Roger contributed financially from work outside the home, the court acknowledged that Sofia contributed to the acquisition of marital property as both a satisfactory homemaker and, on occasion, a business secretary. Additionally, Sofia has custody of Matthew, who has been diagnosed with attention deficit disorder. Testimony at trial showed that costs of his activities, doctor’s bills, and pharmaceutical bills are extensive.

The trial court specifically found that neither party had engaged in significant misconduct. While Roger claims Sofia engaged in misconduct by poisoning Matthew against him, the court believed that any attempt to alienate Matthew occurred after the marriage was irretrievably broken. We defer to the trial court on issues of credibility of witnesses. Fry, 827 S.W.2d at 773; Brawley v. McNary, 811 S.W.2d 362, 365 (Mo. banc 1991); Rule 73.01(c)(2). Point denied.

In his second point, Roger alleges the trial court erred in finding that one thousand shares of stock were marital property. Roger acknowledges his placement of the shares into a joint bank account created a presumption of donative intent, and that clear and convincing evidence is necessary to counter the presumption. In re Marriage of Jennings, 910 S.W.2d 760, 763 (Mo.App. S.D.1995). The only evidence Roger cites was his testimony that he never intended to make a gift of the stock. Since the trial court apparently did not credit Roger’s testimony on this matter, and the trial court is in a better position to judge the credibility of witnesses, Roger has not successfully rebutted the presumption of donative intent. Brawley, 811 S.W.2d at 365. Point denied.

In her cross appeal, Sofia argues the trial court erred in classifying funds in a joint bank account (“MTB 113”) as separate property. Roger initially deposited inherited money into MTB 113.

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Bluebook (online)
965 S.W.2d 319, 1998 Mo. App. LEXIS 289, 1998 WL 60811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-friedman-moctapp-1998.