In Re Marriage of Kirkham

975 S.W.2d 500, 1998 Mo. App. LEXIS 1659, 1998 WL 634638
CourtMissouri Court of Appeals
DecidedSeptember 17, 1998
Docket22038
StatusPublished
Cited by15 cases

This text of 975 S.W.2d 500 (In Re Marriage of Kirkham) 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
In Re Marriage of Kirkham, 975 S.W.2d 500, 1998 Mo. App. LEXIS 1659, 1998 WL 634638 (Mo. Ct. App. 1998).

Opinion

BARNEY, Judge.

Leona L. Kirkham (Wife) appeals from the trial court’s amended judgment entered on December 5,1997.

The trial court dissolved Wife’s eight-year marriage to Glenn Edwin Kirkham (Husband) in a judgment entered on January 31, 1994. Following the entry of the 1994 judgment, however, the parties stipulated that the portions of the trial court’s judgment and decree affecting the distribution of marital and non-marital property should be set aside. The court acquiesced in the stipulated request and held an evidentiary hearing and entered its judgment on July 10,1995.

Wife appealed to this Court from the trial court’s judgment entered July 10, 1995, and we affirmed in part but reversed and remanded the matter for additional findings regarding the classification of the parties’ property as either marital or non-marital, and matters relating to the distribution of property and maintenance. See In re Marriage of Kirkham, 935 S.W.2d 392, 393 (Mo. App.1996).

In her appeal from the trial court’s amended judgment and decree entered December 5, 1997, Wife now assigns five points of trial court error, four directed at the trial court’s classification, distribution and valuation of marital and non-marital property and one directed to the court’s decision to deny an award of maintenance to Wife.

“Provisions in a [dissolution] decree will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law.” Crews v. Crews, 949 S.W.2d 659, 663 (Mo.App.1997). “The burden of demonstrad ing error is on the party challenging the ... decree.” Id.

“A trial court is vested with considerable discretion in dividing marital property; an appellate court will interfere only if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion.” In re Marriage of Box, 968 S.W.2d 161, 169 (Mo.App.1998); see also § 452.330, RSMo 1994. As to a trial court’s decision on the issue of whether to award maintenance, “the trial court is [also] granted broad discretion, and the evidence is viewed favorable to the decree, disregarding evidence to the contrary and deferring to the trial court even if the evidence could support a different conclusion.” Crews, 949 S.W.2d at 663; see also § 452.335, RSMo 1994.

Judicial discretion is abused when a trial court’s ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. In re Marriage of Box, 968 S.W.2d at 169. If reasonable persons can differ about the propriety of the trial court’s action, it cannot be said that the trial court abused its discretion. Id.

We do not ignore these strictures of appellate review in addressing Wife’s assignments of trial court error.

In the trial court’s amended judgment and decree, it awarded Husband the following separate, non-marital property: 1

(1) Tract A:

A one-half interest in a house and one (1) acre acquired before the marriage and described as follows:
*503 A part of the SW 1/4 of the NE 1/4 of Section 22, Township 28, Range 18, described as follows: Commencing at the NW corner of said SW 1/4 of the NE 1/4 and running thence East 210 feet, thence South 210 feet, thence West 210 feet, and thence North 210 feet to the place of beginning, SUBJECT to all public and private roads and all easements of record. Situated in Webster County, Missouri.

(2) .50 caliber black powder rifle.

(3) $8,676.00 of retirement account at Paul Mueller Company, acquired prior to marriage.

The trial court valued the one-half interest in the house and one (1) acre of real property, comprising Tract A, at $15,000.00.

The trial court then recited in its judgment that “having considered the statutory factors, finds that Husband was the primary source of the acquisition of the parties’ marital property, and that the following is an equitable division of the marital property and debts and orders the marital property and debts divided as follows”:

TO HUSBAND:

(1)Tract B:

The (other) one-half interest in the house and one (1) acre acquired from Husband’s former wife after the marriage and described as:
A part of the SW 1/4 of the NE 1/4 of Section 22, Township 28, Range 18, described as follows: Commencing at the NW corner of said SW 1/4 of the NE 1/4 and running thence East 210 feet, thence South 210 feet, thence West 210 feet, and thence North 210 feet to the place of beginning, SUBJECT to all public and private roads and all easements of record. Situated in Webster County, Missouri.

The trial court valued this (other) one-half interest in the house and one (1) acre of real property, comprising Tract B, at $15,000.00.

(2)Tract C:

128 acre farm described as:

The SW 1/4 of the NE 1/4 and the NW 1/4 of the SE 1/4 and the W 1/2 of the NE 1/4 of the SW 1/4, and all that part of the SW 1/4 of the SE 1/4 lying North of Finley Creek; all in section 22, Township 28, Range 18. ALSO, a part of the SE 1/4 of the SW 1/4 of said Section 22 described as commencing at the NE corner thereof and running thence South along the East line thereof a distance of 438 feet, more or less, to center of branch for a beginning point; thence Southwesterly with the meanderings of said branch to the North bank of Finley Creek; thence Easterly along the North bank of said Finley Creek to the East line of said Quarter Quarter; thence North with the East line thereof to the place of beginning. EXCEPTING THEREFROM a part of the SW 1/4 of the NE 1/4 of said Section 22 described as commencing at the NW comer of said Quarter Quarter and running thence East 210 feet, thence South 210 feet, thence West 210 feet, thence North 210 feet to the place of beginning. ALSO EXCEPTING a roadway conveyed to Bert R. Kirk and Mary E. Kirk, his wife, described as being a square tract in the Northwest comer of said SW 1/4 of the SE 1/4, being 30 feet on each side, and the West 30 feet of the NW 1/4 of the SE 1/4, all in said Section 22. Situated in Webster County, Missouri.

The trial court noted that “the house on the farm is subject to a life estate in [Husband’s] mother who at the time of divorce was 71 years old. The Court, having observed the [Husband’s] mother and age, finds the net value of the farm to be $60,812.00.”

(3) 1989 Chevrolet pickup .$5,500.00

(4) 1975 Chevrolet pickup .$1,000.00

(5) Increase in Husband’s retirement plan.$12,167.00

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Bluebook (online)
975 S.W.2d 500, 1998 Mo. App. LEXIS 1659, 1998 WL 634638, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kirkham-moctapp-1998.