Marriage of Marks v. Marks

618 S.W.2d 249, 1981 Mo. App. LEXIS 2982
CourtMissouri Court of Appeals
DecidedJune 4, 1981
Docket11666
StatusPublished
Cited by10 cases

This text of 618 S.W.2d 249 (Marriage of Marks v. Marks) 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 Marks v. Marks, 618 S.W.2d 249, 1981 Mo. App. LEXIS 2982 (Mo. Ct. App. 1981).

Opinion

*250 HOGAN, Judge.

In this dissolution of marriage action, plaintiff Frances Marie Marks appeals from that part of the decree which distributes the parties’ separate and marital property as required by § 452.330, RSMo 1978. 1 The sole point briefed and argued is that the division of marital property is so grossly disproportionate as to constitute an abuse of discretion.

We have reluctantly concluded we cannot adjudicate the appeal on its merits. Even so, some recital of the background facts is necessary to demonstrate the route by which we have reached that conclusion.

The parties reside in Mississippi County. The defendant husband is 45 years of age; the plaintiff wife’s age is not shown. The parties were married in 1952; they were finally separated in 1978, inferably because the husband acquired a 24-year-old paramour.

The case had been tried by fits and starts since 1978. After the parties separated, plaintiff commenced an action for dissolution; a property settlement was executed. Plaintiff repudiated the settlement, discharged her attorney and dismissed the suit. Thereafter plaintiff employed another attorney and instituted this action on April 19, 1979.

In July 1979, plaintiff’s trial counsel— who did not represent her on this appeal— took the depositions of both parties. On November 20, 1979, this cause was called for hearing. Both parties again testified. At the close of the trial, the court asked counsel for each party to submit a schedule of the property claimed by his client, either as separate or marital property. It was agreed that these documents might be considered as evidence. Schedules were submitted, although they were not signed by the parties as the court had requested. On January 10, 1980, the trial court entered an order dissolving the marriage and apportioning all the property as marital property. On January 28, the court amended the decree of its own motion.

The sparse record created by the depositions, the trial testimony and the schedules filed is vague, but it is sufficient to show the value of the parties’ fixed assets. Plaintiff and defendant owned two 40-acre tracts of land located in the “southeast part” of Mississippi County. One of the tracts is improved; the other is not. Plaintiff’s estimate of the value of each tract was $60,000. Defendant assigned a value of $40,000 to each parcel. According to the plaintiff, the improvements were worth $45,000 to $56,000; defendant’s estimate was $20,000 to $25,000. The parties also owned other realty. An improved lot at Whiting, near East Prairie, was valued at $10,000 by the plaintiff and at $8,000 by the defendant. Three lots in Lilboum, in New Madrid County, were worth $7,500 by plaintiff’s estimate and $6,000 by defendant’s. A tract of land in East Prairie, by plaintiff’s estimate, was valued at $8,000; upon trial she testified that a “trailer” located on the East Prairie property “cost $4,800 in 1977.” According to his schedule, defendant’s farm machinery was worth $27,195 subject to a liability of $18,000; plaintiff valued the machinery at a figure “in excess of $30,000.” Some of the items listed by the plaintiff, e.g., firearms and used automobiles, were manifestly overvalued by the plaintiff or were offset by a $10,000 award of “final and separate maintenance.” There were other assets which may be marital property, e.g., the cash proceeds of defendant’s 1978 crops and his 1979 soybean crop, which at trial time was stored on one of the 40-acre tracts. The cause was so indifferently tried that the value of these assets cannot be fairly estimated.

In any event, neither decree assigned any value to any item awarded to either party. Section 452.330.1 and like statutes have been construed to require a judgment which identifies the parties’ separate and marital property and which values *251 and divides each marital asset. Hopkins v. Hopkins, 597 S.W.2d 702, 709[5] (Mo.App.1980); V.M. v. L.M., 526 S.W.2d 947, 951[9] (Mo.App.1975); Vivian v. Vivian, 583 P.2d 1072, 1074 (Mont.1978). Infinite detail is not required; it is not necessary that every pot, pan, broom and hoe handle be separately listed and valued. Cf. In re Marriage of Thompson, 79 Ill.App.3d 310, 34 Ill.Dec. 342, 398 N.E.2d 17, 22[13] (1979). The intent of the statute is that all the marital property be valued and divided in a single proceeding; otherwise one of the parties may go without day. State ex rel. McClintock v. Black, 608 S.W.2d 405, 406-407[1][2] (Mo. banc 1980). In this case it would have been entirely proper to treat the farm machinery as a unit and to include the values of the improvements in the value assigned to the parcels of realty. The shotguns and boats laboriously enumerated in the plaintiff’s schedule might well have been considered in the aggregate and valued simply as hunting and fishing equipment, but inasmuch as no value was assigned to any of the marital assets, the cause has not been fully adjudicated. Glascock v. Glascock, 607 S.W.2d 834—835 (Mo.App.1980); Hopkins v. Hopkins, supra, 597 S.W.2d at 709[6]. As a general rule, an appellate court may not exercise its jurisdiction until the trial court has fully decided the issues presented to it. Pendleton v. Pendleton, 532 S.W.2d 905, 906 (Mo.App.1976); Green v. Green, 240 S.W.2d 741, 742-743[3, 4][5-7] (Mo.App.1951); F. James and G. Hazard, Civil Procedure § 13.4, pp. 669-670 (2d ed. 1977). That rule applies here and the submission must be set aside.

Having concluded the submission must be set aside and the cause must be remanded, we have two suggestions to offer the trial court. If the division of property is inequitable, the disproportion may consist in the court’s division of the parties’ farm land and the crops harvested in 1978 and 1979.

One of the parties’ principal assets was an 80-acre farm located “in the southeast part” of Mississippi County. The farm consists of two 40-acre tracts which do not adjoin. Upon deposition and at the trial plaintiff and defendant treated the two 40-acre tracts as discrete parcels by calling one of them the “Cooper place” or “home place” and the other the “Johnson place.” It is clear that the “Cooper place” is improved and the “Johnson place” is not. No muniment of title to either tract was produced at any time. Plaintiff submitted a schedule which indicates that both tracts are located in Township 23 North, Range 16 East. Plaintiff’s schedule further indicated the description came from defendant’s counsel. Defendant’s schedule contained a description which shows that one tract is located in Township 23 North, the other in Township 24 North.

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Bluebook (online)
618 S.W.2d 249, 1981 Mo. App. LEXIS 2982, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marriage-of-marks-v-marks-moctapp-1981.