Johnson v. Johnson

817 S.W.2d 666, 1991 Mo. App. LEXIS 1650
Missouri Court of Appeals·Decided October 29, 1991·No. No. 17217·Published·Cited by 1 cases

Opinion

CROW, Judge.

Jackie Jean Johnson appeals from a decree dissolving her marriage to Gerald Wayne Johnson. Jackie’s1 sole point relied on avers the trial court abused its discretion by dividing the marital property in a manner that “disproportionately favored [Gerald].”

We review per Rule 73.01(c), Missouri Rules of Civil Procedure (1991), as construed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The decree of the trial court will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. 536 S.W.2d at 32 [1]. This standard applies to appeals from decrees of dissolution of marriage. In re Marriage of Campbell, 685 S.W.2d 280, 283 [3] (Mo. App.1985); Whitenton v. Whitenton, 659 S.W.2d 542, 546 [1] (Mo.App.1983). Where, as here, neither party requested the trial court to make findings of fact or conclusions of law, and the trial court made none, all fact issues are considered as having been resolved in accordance with the result reached. Rule 73.01(a)(2); Fomachon v. Fomachon, 748 S.W.2d 705, 707 [1] (Mo. App.1988); In re Marriage of Clark, 718 S.W.2d 649, 653 [2] (Mo.App.1986).

Viewed according to the above criteria, the evidence establishes Jackie married Gerald November 26, 1988. It was Gerald’s second marriage. He had three children by his first wife, who was deceased at the time the instant case was tried.2 Gerald’s two youngest children, Chad and Marty, were 18 and 11, respectively, when Gerald married Jackie. Chad and Marty lived with Gerald and Jackie after the marriage.

Jackie had a son, Christopher, at the time she married Gerald. Christopher did not reside with Jackie and Gerald after the marriage, but did visit them “two weeks at Christmas.”

Jackie, age 41 at time of trial, was a public school teacher when she married Gerald. Gerald, age 51 at time of trial, was employed by an airline as a “copilot” when he married Jackie.

After the marriage, the parties resided in Dexter in a house Gerald owned at the time they wed. Because of Gerald’s occupation, he was usually gone four days, then home three.

Some three months after the marriage, Gerald informed Jackie he wanted “to put in a bid to be captain.” He applied, was accepted, and attended “pilot school” in Denver several weeks. During that period, Jackie, who was teaching school weekdays, continued to cook and keep house for Brad and Marty.

Gerald successfully completed training and was elevated to captain. Inasmuch as he had no regularly scheduled flight, he was required to go to Chicago and “be on call.” As a result, he was sometimes gone from home six consecutive days.

At the time of the marriage, Jackie owned a 1982 automobile, furniture and [668]*668household goods, and an interest in “a teacher retirement program.” The value of that interest at the time of the marriage is not shown. However, Jackie testified about $2,700 was paid into the retirement plan during the marriage.

Jackie also testified she had a “CAPE plan.” She explained it is “vision insurance,” and if she became sick and lost work, “it would pay my salary.” The record is silent as to the value (if any) of this asset.

During the marriage, the parties traded in Jackie’s 1982 automobile on a 1988 Topaz. At the time of that transaction, Jackie owed her school credit union $7,455. She and Gerald borrowed an additional $8,500 from the credit union to pay the cash difference for the Topaz.

Gerald’s assets at the time of the marriage included two houses. On one, referred to in the transcript as “the rent house,” Gerald owed $43,000 when he married Jackie. The rent he was receiving from the tenants was insufficient to service the debt. According to Jackie, she and Gerald borrowed $1,200 from her school credit union during the marriage to pay interest Gerald owed on the rent house loan.

Gerald sold the rent house during the marriage. He testified only $200 remained after satisfying the indebtedness on it. That testimony was uncontradicted.

The other house Gerald owned at the time of the marriage was the one he and Jackie occupied before separating. At the time of the marriage, there was a lien on it securing a debt in the principal amount of $80,077.55.

Gerald owned four automobiles at the time of the marriage. At time of trial, his eldest child (a college student) was driving one. Chad, also attending college at time of trial, was driving another. A third (a 1975 Oldsmobile) was in Chicago to provide Gerald transportation when he was there. The fourth vehicle was his everyday transportation.

Gerald also had two “retirement plans” at the time of the marriage. One, designated the “Fixed Benefit Plan,” is funded entirely by his employer. There was no evidence about the value of that asset on the date of the marriage. However, Gerald testified the Fixed Benefit Plan would pay him $1,540 per month at age 60, according to current calculations.

Gerald’s other retirement plan on the date of the marriage was characterized the “Direct Account Plan.” A percentage of his salary goes into it. Its value fluctuates according to the performance of the investments. On November 23, 1988, three days before the marriage, the value was $106,-501.83. Gerald testified he could withdraw assets from this plan only on retirement or termination of employment.

Jackie testified Gerald owed about $43,-000 to his credit union at the time of the marriage. Asked whether that debt was reduced during the marriage, she replied, “He told me he paid $25,000 off.” This testimony was uncontradicted.

The parties separated April 15, 1990. At that time, the principal balance of the loan on the house they had been occupying— owned by Gerald before the marriage — had been reduced to $78,931.36.

As of August 28, 1990, the value of Gerald’s Direct Account Plan was $138,169.38. At trial 29 days later, Gerald testified its value had dropped by $10,000 “in the last month” due to the stock market. This testimony was uncontradicted.

On the trial date, the parties were indebted to Jackie’s school credit union on two loans. While the record is not as precise as it should be, we gather the aggregate amount of this indebtedness was approximately $12,200.

There were uncashed federal and state tax refund checks payable to the parties. The federal refund was $4,562; the state refund was $691.

The decree awarded Jackie the personal property she owned before the marriage, the 1988 Topaz automobile, her pension, half the federal and state tax refunds, and a few items of personal property acquired during the marriage. Jackie testified the latter items were gifts to her from Gerald [669]*669and others. This testimony was uncontra-dicted except as to a used television set, the value of which is not shown.3

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Johnson v. Johnson, 817 S.W.2d 666, 1991 Mo. App. LEXIS 1650 (Mo. Ct. App. 1991).

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