Marriage of Featherston v. Featherston

710 S.W.2d 288, 1986 Mo. App. LEXIS 3814
CourtMissouri Court of Appeals
DecidedMarch 18, 1986
Docket50275
StatusPublished
Cited by11 cases

This text of 710 S.W.2d 288 (Marriage of Featherston v. Featherston) 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 Featherston v. Featherston, 710 S.W.2d 288, 1986 Mo. App. LEXIS 3814 (Mo. Ct. App. 1986).

Opinion

GARY M. GAERTNER, Judge.

On May 14, 1985, the trial court entered a decree dissolving the fourteen-year marriage between petitioner, James Feather-ston (husband), and respondent, Linda Featherston (wife). Wife appeals from that decree, arguing that the trial court erred in: (1) finding that the marriage was irretrievably broken; (2) dividing the marital property between the parties; (3) denying wife an award of maintenance; and (4) awarding wife attorney’s fees in the amount of only $500. Finding each of these arguments without merit, we affirm.

The parties met in 1968, when wife began working for husband as a commercial artist. Although husband was already married at that time, he and wife commenced “going together” in 1969. Husband obtained a divorce in February of 1970, and proceeded to marry wife on June 12, 1970.

Wife ceased working outside the home within the first few years of marriage. Husband continued working until 1980, when his health began to fail and he retired. 1 At about that same time, the parties began experiencing marital difficulties. Their marital problems were compounded by financial setbacks, which caused husband to return to work. Husband suggested to wife that she should also seek employment, but she decided instead to return to school and pursue a graduate degree in architecture. 2 The parties thereafter separated in or about March of 1983. At the time of the dissolution hearing, the parties had not had sexual relations for approximately one year.

The parties acquired three pieces of real estate during the marriage. These included a house in Kirkwood, Missouri, with an appraised value of $40,000; a house on the Bourbeuse River near Beaufort, Missouri, appraised at $21,000; and 160 acres of land in Dent County, Missouri, appraised at $24,000. The parties also owned three automobiles. These included a 1966 Volkswagen; a 1981 Mercury Zephyr station wagon, valued at $4000; and a 1983 Mercury Lynx, valued at $6500, which is subject to a $5500 chattel mortgage.

Husband currently receives $2000 monthly from his employment, and $800 monthly in United States Army pension benefits. When he retires, he will receive, in addition to the army pension, a $300 monthly pension from his employer and $400 monthly from the Social Security program. Wife currently attends school full-time, and has no income.

On May 1, 1985, the trial judge mailed a letter to the attorneys for both parties, stating that he considered the marriage “broken and dissolved,” and explaining how the marital property would be divided. The letter also provided: “The court considers both parties to be short on moral courage, but she [wife] is the one who picked up on an already married man.”

*290 On May 14, 1985, the trial court entered a decree dissolving the marriage. The decree provided that the marriage was “irretrievably broken.” The court denied maintenance to both parties, and awarded each party the personal effects in that party’s possession. The court awarded wife the real estate in Kirkwood and Dent County, and the Volkswagen. 3 The court awarded husband the Bourbeuse River property and the remaining two automobiles, with husband to assume the mortgage on the Mercury Lynx. 4 The court also ordered husband to pay wife $500 for her attorney’s fees. Wife appeals from that decree.

Our review of a court-tried case, such as the case at bar, is governed by Rule 73.01. Pursuant to that rule, we must sustain the trial court’s decree unless it is not supported by substantial evidence, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Kornberg v. Kornberg, 688 S.W.2d 377, 378 (Mo.App.1985).

In her first point on appeal, wife argues that the trial court abused its discretion in finding that the marriage was irretrievably broken. Wife contends that, under the applicable statutory test, the evidence in the record does not support such a finding.

Section 452.320.2 RSMo 1978 5 provides that, if the issue of irretrievable breakage is disputed, the trial court must determine whether the marriage is irretrievably broken in light of all relevant factors, including the circumstances that gave rise to the filing of the dissolution petition and the prospect of reconciliation. For the court to find the marriage irretrievably broken, petitioner must adduce evidence establishing at least one of the five factors set forth in section 452.320.2(1). Tygett v. Tygett, 639 S.W.2d 282, 284 (Mo.App.1982). The only one of those factors relevant to this action is section 452.320.-2(1)(b), which requires that “the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

In the case before us, the record contains sufficient evidence to support a finding that wife has behaved in such a manner that husband cannot reasonably be expected to live with her. The evidence established that the parties had not had any sexual contact for approximately one year prior to the dissolution hearing. Husband testified that wife once said she “despised” him, and that she generally exhibited little consideration for his needs or desires. He further testified that she refused to obtain employment when his health began to fail and they began having financial problems, and that she insisted instead upon beginning graduate school. When questioned at the dissolution hearing about her husband’s health, wife testified that “[h]e loves to say he doesn’t feel well.” While this evidence may not indicate gross misconduct on wife’s part, we must defer to the trial court’s determination. Cregan v. Clark, 658 S.W.2d 924, 927-28 (Mo.App.1983). The existence of such evidence distinguishes this case from In re Marriage of Capstick, 547 S.W.2d 522 (Mo.App.1977), upon which wife relies heavily. Accordingly, this point is denied.

In her second point on appeal, wife argues that the trial court erred in dividing the marital property between the parties. Wife contends that the court erred by failing to assign any specific value to the items identified as marital property, and by improperly considering the relevant statutory factors.

Section 452.330.1 RSMo Cum.Supp.1984 provides that the trial court must divide the marital property in light of all relevant factors, including:

*291 (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(2) The value of the property set apart to each spouse;

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Bluebook (online)
710 S.W.2d 288, 1986 Mo. App. LEXIS 3814, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-featherston-v-featherston-moctapp-1986.