Horridge v. Horridge

618 S.W.2d 202, 1981 Mo. App. LEXIS 2840
CourtMissouri Court of Appeals
DecidedMay 4, 1981
DocketNo. WD 31456
StatusPublished
Cited by7 cases

This text of 618 S.W.2d 202 (Horridge v. Horridge) 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
Horridge v. Horridge, 618 S.W.2d 202, 1981 Mo. App. LEXIS 2840 (Mo. Ct. App. 1981).

Opinion

NUGENT, Judge.

This is the petitioner Roy G. Horridge’s third of a series of trips to this court arising from an action he commenced in 1974 in Clay County for dissolution of his marriage to Diane J. Horridge. The first was an appeal protesting the award of $25,000.00 to Diane in the 1974 decree of dissolution. On August 30, 1976, this court reversed that judgment and remanded the case for new trial. Horridge v. Horridge, 542 S.W.2d 324 (Mo.App.1976) (hereinafter Horridge I). Subsequently, Roy filed on original action in prohibition in this court. In that case, we issued and made absolute a rule prohib[203]*203iting the original trial judge from taking further action in the case except to grant Roy’s request for a change of judge. State ex rel. Horridge v. Pratt, 563 S.W.2d 168 (Mo.App.1978) (hereinafter Horridge II). The case was then transferred to Ray County where, after another trial, a second judge awarded the sum of $25,000.00 to Diane as maintenance in gross, generating this appeal. With the utmost reluctance, we now must dismiss the appeal and remand the case to the trial court for further proceedings.

The second judge bottomed his decision to award maintenance in gross on what he perceived to be the mandate of Horridge I to give Diane “ ‘.. . the opportunity to make proof of the missing elements of her right to Maintenance, and if she does so sufficiently on new trial, the Court should make the required findings under § 452.-335.’” The judgment entry from which this appeal is taken warrants belief that the trial judge misread the mandates of this court in the earlier cases. In any event, the evidence, including that of the value of the property owned by the parties, is insufficient to support the judgment. Murphy v. Carron, 536 S.W.2d 30 (Mo. en banc 1976).

The parties were married in 1966 and separated in 1973. They had no children. During the course of the marriage Diane continued her employment as a flight attendant. Roy was a pilot in a charter service as well as a speculator in aircraft and real estate. Roy’s business ventures were undertaken in the names of various corporations.

In his amended petition for dissolution, Roy alleged that the parties had equitably divided their property and had substantially the same income. Diane responded that she lacked sufficient property, including marital property, and lacked the earning capacity to provide for her needs. She prayed for maintenance and for a division of the marital property.

At the Clay County trial in April, 1974, Roy and Diane were the only witnesses. Each gave evidence of the respective financial conditions of the parties. This court in Horridge I, supra at 325, further described that trial:

The principal issue at trial was that of appellant’s net worth, obviously done for the purpose of showing his ability to pay respondent maintenance. The evidence on that issue was conflicting. Respondent produced a financial statement of appellant dated December 15,1972, showing a net worth in excess of $700,000, and testified that he had told her at various times that he was worth a half million, a quarter of a million, or several thousands of dollars. Appellant testified the financial statement was fictitious and was made only for the purpose of securing credit. He produced balance sheets of two of his corporations showing a relatively small net worth, and testified that he owed $135,000 on a guarantee to the Commerce Trust Company, and that there was a $250,000 default judgment for the wrongful death of two of his pilots outstanding against him. Other liabilities were testified by him, all of which indicated his insolvency.

Thereafter, the trial court entered its decree which contained the following provision for Diane: “Respondent is awarded judgment and execution as due against Petitioner in the sum of Twenty-five Thousand Dollars ($25,000.00)....” The decree did not specify whether that award was for maintenance or a part of the division of marital property. That omission has proved to be irksome to the parties, to this court and the second trial court. Furthermore, although the decree awarded each of the parties other property, the trial court placed no value on any of that property.

In June, 1974 Roy appealed the $25,000.00 award to Diane. This court took note of two confusing aspects of the case: the conflicting evidence of Roy’s net worth mentioned above and the lack of specificity as to the nature of the award to Diane. We reversed the judgment and remanded the case for new trial with the following observations and directions, at 324-25:

Although the trial court did not denominate the award as “maintenance” the [204]*204appellant so treats it in his brief. It is noted that in her petition, respondent pleaded that she “lacks sufficient property and earning capacity, including any marital property awarded to her, to provide for her needs and is unable to support herself through employment, whereas Roy Horridge is well able to contribute to her maintenance.”
The parties have misconceived the requirements of a maintenance award under the statute, and there is a failure of proof of respondent’s reasonable needs. The judgment will not be reversed outright, however, because respondent should be given the opportunity to make proof of the missing elements of her right to maintenance, and if she does so sufficiently on new trial, the court should make the required findings under § 452.-335.

Further addressing the issue of Roy’s assets, the court at 325 gave the following direction: “This conflicting evidence will again be for the consideration by the trial court along with the matter of credibility of the witnesses.”

In 1978 Roy made his second appearance in this court in an extraordinary writ proceeding in which he sought to prohibit the trial judge who presided in the original proceeding from hearing the case on remand. Horridge II, supra. This court at 169 found that the dispositive issue in granting the writ of prohibition was “whether the further proceedings in the court below constitute a ‘new trial’ or a continuation of the earlier proceedings”. The court held at 171:

.. . that the previous opinion and mandate ordered a “new trial” on the issue of the wife’s maintenance and that the remand was for that purpose and not for the taking of limited evidence to amplify the prior record. So holding, there seems to be little question that respondent should have granted the relator’s request for a change of judge.

In its explanation of the holding in Hor-ridge I, the opinion noted that, “The issue of maintenance is interwoven with and inseparable from the issues of the ownership of property, both separate and that which is marital and thus divisible. The statute1 itself so provides.” Horridge II at 171. (Emphasis added)

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Bluebook (online)
618 S.W.2d 202, 1981 Mo. App. LEXIS 2840, Counsel Stack Legal Research, https://law.counselstack.com/opinion/horridge-v-horridge-moctapp-1981.