Marriage of Barber v. Barber

748 S.W.2d 679, 1988 Mo. App. LEXIS 114, 1988 WL 6291
CourtMissouri Court of Appeals
DecidedFebruary 2, 1988
DocketNo. WD 38637
StatusPublished
Cited by5 cases

This text of 748 S.W.2d 679 (Marriage of Barber v. Barber) 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
Marriage of Barber v. Barber, 748 S.W.2d 679, 1988 Mo. App. LEXIS 114, 1988 WL 6291 (Mo. Ct. App. 1988).

Opinion

KENNEDY, Chief Judge.

Appellant husband, Michael, appeals from the property division, maintenance, child support and attorneys fee provisions of a decree, dissolving his nine-year marriage to Dawn, during the last three years of which they were separated.

A second appeal from the court’s award of $3,850 for Dawn's attorney's fees on appeal has been consolidated with the first.

The parties were married November 26, 1977, when Michael was 18 and Dawn was 17. They were seniors in high school. Dawn was five months pregnant and their first child, a son, was born March 30, 1978. There were two other children, the youngest bom after the parties’ separation, which occurred September 1, 1983. Michael throughout the marriage was employed by Barber and Sons Tobacco Co., a corporation whose sole or principal stockholder was his father. The corporation had diverse interests, including a farm or farms. Michael was employed as farm manager. Throughout the time they lived together the couple lived rent free in houses owned by the Barber and Sons corporation.

The marriage was a stormy one. Michael was addicted even from his high school days to the use of alcohol, and he also used other drugs. He was volatile and abusive toward Dawn and more than once threatened her with a gun. As noted, they separated on September 1, 1983. Dawn filed this dissolution suit September 27, 1983. The case was tried on December 13, 1984, and on January 30,1985. The decree was entered more than 18 months later, on August 7, 1986.

Property Division — Interest in methane plant

We will first take up Michael’s complaints about the property division. He does not complain of any disproportionate division of marital property. First, he complains about the award to him of his interest in “Clovis III”, a methane plant located in Clovis, New Mexico, in which he had a V15 share. His grounds are that the court did not designate it as marital or nonmari-tal property; that the court had no jurisdiction over it since it was in a Chapter 11 Bankruptcy proceeding; and that it was in any case a gift to him and therefore non-marital property.

Assuming that what Michael says is true, he has not shown us how he was prejudiced. It was awarded to him. The only evidence of its value was that it had no value. It was a tax shelter, which had generated large tax losses for him — $8,700 in 1982 and $41,098 in 1983. There is nothing to indicate that its award to him in any way skewed or distorted the property division. Without some prejudice to himself, he has no ground for complaint. Rasmussen v. Rasmussen, 627 S.W.2d 117 (Mo.App.1982).

Property Division — Kawasaki motorcycle

What is true of the methane plant interest is true also of the Kawasaki motorcycle which was awarded to Michael. He urges it was nonmarital property. In this he is undoubtedly correct; the machine was given him by his father as a Christmas present. But it was awarded to him, not to Dawn. Once again, as in the case of the methane plant interest, there is nothing to indicate the property distribution was thrown out of balance by the award of this item to Michael. Id. He suffers no prejudice and we can give him no relief on this point.

Maintenance in gross — Corvette automobile

One of the components of the wife’s $36,750 maintenance in gross award was “$9,500 as and for one-half of the sales proceeds received by Respondent due to the sale of the 1984 Corvette automobile”. Michael says that the court had no jurisdiction to make such an award, since the car [681]*681belonged to the Barber and Sons corporation.

There is a dispute in the evidence on this point. Dawn listed the car as marital property in a schedule filed with the court. Then she testified:

Q: And then you have a 1983 Chevrolet Corvette. Is that any longer in existence?
A. No. I found out since Michael sold it.

Steve Barber, Michael’s uncle, testified that in the fall of 1984 Michael had shown him a Barber and Sons check made out to him for $19,000, which Michael told Steve he had received from the sale of a 1984 Corvette.

Michael’s father testified that the Corvette was one of 80 vehicles titled in the name of the Barber and Sons Corporation and used by employees.

There was no other testimony about the Corvette, and especially about the $19,000 check. Michael although present at the trial did not testify. Later (March 31, 1986) his counsel sent to the court documentation tending to show that the Corvette had been purchased by the Barber and Sons corporation and titled in the corporation’s name. This documentation is included in the legal file, but this as appellant himself reminds us makes up no part of the record and is entitled to no consideration. Collins v. Vernon, 512 S.W.2d 470, 473 (Mo.App.1974).

In this state of the record we are unable to say that the trial court erred in awarding Dawn the equivalent of one-half the proceeds of the sale of the Corvette.

Maintenance in gross — Mercedes automobile

Michael complains of the court’s treatment of a 1978 Mercedes auto as marital property and alternatively of its valuation. He says the court should not have included one-half its value in the maintenance in gross award to Dawn.

There is ample evidence to support the court’s treatment of the car as marital property. It was a high school graduation gift from Michael’s father. Michael and Dawn, who had been married the preceding November, graduated from high school at the same time. Although the Mercedes was titled in Michael’s name, Dawn testified positively it was a gift to both of them. It had been presented in the presence of 30 people. “I even have the card,” she testified.

The court awarded Dawn $8,750 “as and for one-half of the value of the parties’ 1978 Mercedes automobile.” The car had been listed at a value of $17,300 on Dawn’s “Statement of Marital and Non-Marital Property, Income and Expenses”, dated October 29, 1984. There was no other testimony than that. On the other hand, there was in evidence a copy of an Aristocrat Motor Company check for $7,500, dated July 11, 1984, payable to Michael, containing the memorandum, “Payment in full for 1978 Mercedes-Benz 300D”. This check was identified by Michael’s father. There was no other testimony about it. The evidence of the value of this automobile is thus left in an unsatisfactory state. We conclude, however, that its sale price was more reliable evidence of its value than the appearance of the figure $17,300 on Dawn’s statement. Neither figure was subjected to any cross-examination. We will reduce Dawn’s maintenance in gross award by the difference between the $8,750 awarded and the $3,750 which should have been awarded, or $5,000.

Support and maintenance

We turn from the property division to the support and maintenance award totalling $1,300 per month, including: support for A.J., $400.00; support for each of the other two children, $300.00; and maintenance, $300.00. Michael claims this is excessive.

Michael does not argue that the award exceeds the needs of Dawn and the children. The eldest son, nine-year-old A.J., has cystic fibrosis.

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In Re Marriage of Chorum
959 S.W.2d 900 (Missouri Court of Appeals, 1997)
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849 S.W.2d 171 (Missouri Court of Appeals, 1993)
Rogers v. Rogers
803 S.W.2d 92 (Missouri Court of Appeals, 1990)
Margolin v. Margolin
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Bluebook (online)
748 S.W.2d 679, 1988 Mo. App. LEXIS 114, 1988 WL 6291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-barber-v-barber-moctapp-1988.