In re the Marriage of Sharp

630 S.W.2d 588, 1982 Mo. App. LEXIS 2864
CourtMissouri Court of Appeals
DecidedJanuary 12, 1982
DocketNo. WD 32011
StatusPublished
Cited by4 cases

This text of 630 S.W.2d 588 (In re the Marriage of Sharp) 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 the Marriage of Sharp, 630 S.W.2d 588, 1982 Mo. App. LEXIS 2864 (Mo. Ct. App. 1982).

Opinions

KENNEDY, Presiding Judge.

Husband appeals from a dissolution decree. He complains of the division of marital property, of the maintenance award to the wife and of the allowance of wife’s attorney’s fees.

Applying the review criteria of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), we affirm the judgment.

[589]*589Bennie and Lois Sharp were married in 1956 and separated finally on January 21, 1980. Ben was a painter by trade and since 1974 had been an independent contractor. Lois had furnished valuable assistance in the conduct of the business, performing bookkeeping, clerical and quasi-managerial services. In 1979, the last full year before the separation and dissolution, Bennie had earned an after-tax income of $3,000 per month.

Lois had been a dutiful and faithful wife. She had closely supervised the upbringing of their two daughters — in their 20’s at trial time, and emancipated — and their 17-year-old son, Bennie Ray. She was a regular churchgoer and required the attendance of the children.

Ben did not attend church and was unsympathetic to his wife’s church orientation. Ben throughout their married life had spent most of his evenings and many of his nights away from home. He was a frequenter of bars, where he described his activities as “drinking, dancing, raising hell”. He had also been involved in a succession of extramarital affairs. The most recent of these affairs had precipitated the breakup of the marriage. His undomesticated lifestyle had led to two earlier separations before the final one.

1. Division of marital property.

The husband’s sharpest attack is against the court’s division of the marital estate.

The court made the following allocation of the marital property:

To wife:
Residence $ 53,000
Corvette 5,600
Tractor 1,500
Household goods 2,000
Jewelry 500
Total $ 62,600
To husband:
Business equipment 10,450
Stock and IRA 6,000
1978 van 3,500
1975 van 2,000
Household goods 1,000
Taxes (3,000)
Ward’s (1,000)
Mastercharge (1,000)
Materials (3,300)
Attorney’s fees (1.250)
Total + $ 13,750

The court did not assign values to the various items of property. He was not requested to do so, and neither party complains of the omission. We do not believe that the judgment is so deficient on that score as not to be final, and to require dismissal of the appeal. Cf. In re Marriage of Wineland, 609 S.W.2d 464 (Mo.App.1980); Fields v. Fields, 584 S.W.2d 163 (Mo.App.1979) (appeal dismissed because of trial court’s failure to divide marital property); and Glascock v. Glascock, 607 S.W.2d 834 (Mo.App.1980) (reversed for failure to assign values), 620 S.W.2d 413 (Mo.App.1981). The values (most of which were agreed upon by the parties) are taken from the husband’s brief, and represent those values supported by the evidence which result in the narrowest disparity between the parties. It results in 82%-18% division of the marital state between the wife and the husband respectively. Where the court does not make an express finding of facts, the facts are deemed found to support the judgment. Rule 73.01. Stamme v. Stamme, 589 S.W.2d 50, 53 (Mo.App.1979); Halbrook v. Halbrook, 557 S.W.2d 45, 46 (Mo.App.1977).

It is this disparity at which the husband aims his heaviest volleys. He requests this court to require the sale of the residence and the equal division of the net proceeds. This would increase his share by $26,500 and decrease the wife’s share by a similar amount. In support of his position he cites us to Rising v. Rising, 608 S.W.2d 510 (Mo.App.1980), where a 25%-75% property division was set aside in favor of an equal division. There the misconduct (of the wife, in that case) consisted of a single episode, occurring after the separation of the parties, and was not so egregious as the husband’s here. We do not consider Rising to be controlling in the present case.

[590]*590The trial court in his comments at the close of the evidence announced that he was giving the wife the “lion’s share” of the assets — “not only because of conduct, but also because of the fact that she’s been married to you for 23 years, has not been in a position to work, it is — now, of the age of her to enter the job market is a little difficult for her... You have the ability today to go out and make a living, support yourself and support your son. She does not have that ability today... ” By these comments, the court indicated the considerations which motivated his tipping the scales sharply in the wife’s favor. They include two factors expressly mentioned in § 452.-330, RSMo 1978 (amended Ann.Supp. 1981), namely, the unequal economic circumstances of the parties, and the marital misconduct of the husband.

Respondent wife points us to cases where property divisions have been approved in the ratios of 90-10, Halbrook v. Halbrook, supra; 72-28, Arp v. Arp, 572 S.W.2d 232 (Mo.App.1978); 84-16, Stamme v. Stamme, supra; 70-30, Madden v. Madden, 585 S.W.2d 220 (Mo.App.1979); and 88-12, In re Marriage of Burris, 557 S.W.2d 917 (Mo.App.1977). While there are obvious distinctions between those cases and the one now before us, there are two factors present as a constant in each one: In each case the estate to be divided was modest in size, and the family residence was the principal asset of the estate. In each case the residence was awarded to the wife, and she intended to occupy the same. To make a more nearly equal division of the marital property would have involved the sale of the house. That is what the husband wants done in this case, as we have already noted, and the proceeds divided equally between the parties. The sale of a family residence is easy for the court to decree, but it involves for the parties a considerable expense, sale at an inconvenient and perhaps unpropitious time, and the dislocation of the spouse occupying the house.

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

Related

In re the Marriage of Van Myers
879 S.W.2d 736 (Missouri Court of Appeals, 1994)
Mastin v. Mastin
709 S.W.2d 545 (Missouri Court of Appeals, 1986)
In Re Marriage of Runez
666 S.W.2d 430 (Missouri Court of Appeals, 1983)
In Re Marriage of Dusing
654 S.W.2d 938 (Missouri Court of Appeals, 1983)

Cite This Page — Counsel Stack

Bluebook (online)
630 S.W.2d 588, 1982 Mo. App. LEXIS 2864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-sharp-moctapp-1982.