Held v. Held

896 S.W.2d 709, 1995 Mo. App. LEXIS 723, 1995 WL 170302
CourtMissouri Court of Appeals
DecidedApril 11, 1995
DocketNo. 66226
StatusPublished
Cited by6 cases

This text of 896 S.W.2d 709 (Held v. Held) 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
Held v. Held, 896 S.W.2d 709, 1995 Mo. App. LEXIS 723, 1995 WL 170302 (Mo. Ct. App. 1995).

Opinion

PUDLOWSKI, Judge.

Roger C. Held (Husband) appeals the property distribution portion of the trial court’s judgment dissolving his marriage to Aimee B. Held (Wife).

Our review is guided by the oft-cited principles of Murphy v. Carrón, 536 S.W.2d 30 (Mo. banc 1976). On review of a court-tried case, we sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law or erroneously applies it. Id. at 32. It is the duty of the trial court to decide the weight and value given to the testimony of any witness. We accept the evidence and inferences favorable to the prevailing party and disregard all contrary evidence. Nance v. Nance, 880 S.W.2d 341, 343 (Mo.App.E.D.1994). We defer to the trial court, even if the evidence could support a different conclusion. Id.

Husband and Wife were married on April 1, 1978. There was one child born to the marriage, Carolyn Marielle Held, bom September 17, 1985. Both Husband and Wife were high school graduates with limited college education. Wife has held various jobs, most recently she has been working at Farmers and Merchants Bank with a salary of Six Hundred dollars ($600.00) every two weeks. Until approximately 1990, Husband farmed with his father. At that time, Husband became a real estate broker and appraiser. In late 1992, he ceased doing appraisals because he just did not want to do it. He stated that he believed new licensing requirements were coming into effect. He did not want to meet the requirements for the appraiser’s license despite having completed over two hundred classroom hours at Lindenwood College toward his degree in real estate appraising. He currently makes One Thousand Six Hundred Sixty-Six Dollars ($1,666.00) per month. Husband and Wife separated on December 28,1992. Wife filed for divorce on December 29, 1992. On March 30, 1994, a trial was held and on June 22, 1994, the trial court entered its decree. This appeal followed.

Husband appeals the trial court’s disposition of the marital property. He argues that the percentage of the marital estate each party received is evidence of an abuse of discretion. We disagree.

The division of marital property is governed by § 452.3301. The trial court is vested with considerable discretion in dividing marital property and this court only interferes if the division is so unduly weighted as to amount to an abuse of discretion. Bix-ler v. Bixler, 810 S.W.2d 95, 100 (Mo.App. E.D.1991); Cartwright v. Cartwright, 707 S.W.2d 469, 474 (Mo.App.1986). Equal division of property is not required and disproportionate divisions are routinely affirmed. Mika v. Mika, 728 S.W.2d 280, 283 (Mo.App. 1987). We presume the order to be correct and the party challenging the division has the burden of overcoming that presumption. Bixler v. Bixler, 810 S.W.2d at 100. Describing the division of marital property in terms of percentages without examining the specific property each party was awarded, is meaningless. Hernandez v. Hernandez, 872 S.W.2d 161, 166 (Mo.App.W.D.1994).

The alleged disparity in the net awards is due, in large part, to Wife receiving the house as part of her property. Husband valued the house at an estimated value of One Hundred Ten Thousand dollars ($110,000.00). Wife testified that the value of the house was Eighty-Six Thousand dollars ($86,000.00). We find instructive the principle from condemnation cases that the purchase price of real estate, if not too remote in time, is competent evidence of the fair market value. See State ex rel. State Highway Comm’n v. Schwartz, 526 S.W.2d 952, 957 (Mo.App.1975); State ex rel. State Highway Comm’n v. Crain, 496 S.W.2d 867 (Mo.App. 1973). The purchase price of the home in November, 1991, slightly more than a year before the parties separated and two years and four months from the date of the trial was Eighty-Six Thousand dollars ($86,-000.00). Estimating the value in a light most favorable to the court’s decree, the value of the home was approximately Eighty-Six Thousand dollars ($86,000.00). Therefore, [712]*712the percentages of the marital property awarded, to the extent they are enlightening, are significantly changed from those offered by Husband.

One of the factors listed in § 452.330.1 is the desirability of awarding the family home to the spouse having custody of children. The award of the home to the custodial parent reflects an appropriate reluctance to uproot the custodial parent and child by requiring its sale. Vehlewald v. Vehlewald, 853 S.W.2d 944, 949 (Mo.App. E.D.1993) (citing Mika v. Mika, 728 S.W.2d at 284). Since Wife was awarded legal and physical custody of Carolyn, the trial court had a significant reason to award the marital home to Wife. Husband argues that the statute was designed for an unemployed wife. We find no support for this position in the statute nor in the case cited by Husband, Vehlewald v. Vehlewald, 853 S.W.2d 944. In both Pursifall v. Pursifall, 781 S.W.2d 262 (Mo.App.E.D.1989) and S.E.G. v. R.A.G., 735 S.W.2d 164, 167 (Mo.App.E.D.1987), we find factual situations in which an employed spouse who had custody of children was awarded the marital home. Accordingly, we find this argument unpersuasive.

Another factor to be considered is the balance between income and non-income producing property. Vehlewald v. Vehlewald, 853 S.W.2d at 949. Here, the trial court awarded Husband all of the income producing property, namely, his interest in the real estate brokerage business, including listings, works in progress, accounts receivables, goodwill and the office equipment and furniture. The parties’ home is a non-income producing asset. Vehlewald v. Vehlewald, 853 S.W.2d at 949 (citing May v. May, 801 S.W.2d 728, 734 (Mo.App.E.D.1990)). The equity in the house, though substantial, does not provide a steady income and is not readily accessible since Wife must maintain a home for herself and Carolyn.

Finally, we consider the evidence that husband squandered and/or mismanaged assets. One of the factors that the trial court must consider under § 452.330.1 is the conduct of the parties during the marriage. Harry Pri- or, a business partner of Husband, testified that Husband neglected business properties by failing to pay taxes and collect rent. The evidence is clear that the parties owed substantial federal and state taxes; yet Husband failed to sell a substantial amount of corn which was apparently in storage since he quit farming in 1990 or 1991. In addition, he quit the appraisal business because he did not want to do it.

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Bluebook (online)
896 S.W.2d 709, 1995 Mo. App. LEXIS 723, 1995 WL 170302, Counsel Stack Legal Research, https://law.counselstack.com/opinion/held-v-held-moctapp-1995.