Melton v. Melton

816 S.W.2d 232, 1991 Mo. App. LEXIS 1317
CourtMissouri Court of Appeals
DecidedAugust 26, 1991
DocketNo. 17300
StatusPublished
Cited by7 cases

This text of 816 S.W.2d 232 (Melton v. Melton) 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
Melton v. Melton, 816 S.W.2d 232, 1991 Mo. App. LEXIS 1317 (Mo. Ct. App. 1991).

Opinion

CROW, Judge.

The marriage of Robert H. Melton and Sue Melton1 was dissolved by decree entered May 16, 1990. The decree, comprising 51 pages including schedules of sundry classifications of property, provided for the division of an item of marital property characterized “the Robert H. Melton, D.D.S., P.C., pension and profit sharing plan assets.”

On September 21, 1990, more than four months after entry of the decree, Sue filed in the trial court a “Motion to Determine Judgment Amount,” averring the decree awarded her assets from the Plan “equal to one-half of the total value thereof but not less than the fair market value of $165,-260.00.” The motion prayed the trial court for an order “determining the value of one-half interest in the ... Plan as of May 16, 1990 to be the sum of $206,707.05,” and for such other relief as the court deemed just and proper.

Because the judge who entered the dissolution decree had retired prior to the filing of Sue’s motion, the proceedings on the motion were conducted by the successor judge. Following an evidentiary hearing, that judge entered an order December 3, 1990, finding the value of the “vested funds” in the Plan was such that half the value as of the date of the dissolution decree was less than $165,000. The trial court ruled the amount due Sue from Robert in payment of half the assets of the Plan was $165,260. The trial court found Robert had transferred assets to Sue from the Plan “in excess of the minimum amount required to be distributed by the decree.” Consequently, the trial court held the provision of the decree awarding Sue an interest in the Plan had been satisfied.

Sue appeals from the order of December 3, 1990. Her brief presents two assignments of error. Before addressing them, we set forth the relevant provisions of the dissolution decree.

On page 13 the decree reads:

“The Court ... finds ... Sue ... should be awarded as a division of the marital property ... an undivided one-half interest in the Robert H. Melton, D.D.S., P.C., pension and profit sharing plan assets specifically set forth on Schedule ‘B-l’, items 4(a) through 4(d)....”

On page 30 the decree reads:

“It is further ordered, adjudged and decreed that ... [Sue] ... shall receive as a further division of the marital property the following items set forth in Schedule ‘B-l’, as follows:

[234]*234SCHEDULE ‘B-l’

Pension Assets (Paragraph 4(a) through (d)): 4. Undivided one-half interest in the vested funds in Robert H. Melton, $165,260.00 D.D.S., P.C., Employees’ Pension Plan and Trust (PN-001) and Employees’ Profit Sharing Plan and Trust (PN-002) $306,520.00, 12-31-88, plus $24,000.00 interest (1989) comprised of the following combined Pension/Profit Sharing Assets, including any replacements or additions thereto, and including earnings and income, through the date of this Decree:

( ... Robert ... is directed and ordered to advise the Court in writing with a copy to [Sue’s] attorney of record within seven (7) days from the date of this Decree as to whether there are any additions, corrections, or replacements of the following pension/profit sharing assets or changes in the amounts thereof so that the Court can amend its Decree to reflect same.)

a. Pudget [sic] Sound Power & Light Co. Account No. 0000056386, 62.1405 shares Common Stock $1,178.00 (Plus dividends reinvested or accrued through 3-01-90)

b. Lodge of the Ozarks, Inc. (Roy Clark Theatre) Capital Stock in the name of Robert H. Melton Certificate Number 13, 900 shares $1.00 par, ($25,000.00 FMV) (Plus all accrued and unpaid dividends)

c. Empire Bank special account, ‘Securities Account’ Account No. 445461814, Number 401-664-1 700 shares General Motors (7-12-88)

1. IMMA, $ 66,595.56

2. Securities, $ 54,162,50

Total: $120,758.06

($120,758.00 FMV)

(Plus all accrued earnings after 7-12-88)

d. Certificates of Deposit

1. Gill Savings Association, Certificate No. 0253510907 Issued 11-27-87 (12 month) ($25,000.00 FMV) (Plus all accrued interest)

2. Gill Savings Association, Certificate No. 0253510897 Issued 11-27-87 (6 month) ($25,000.00 FMV) (Plus all accrued interest)

3. Empire Bank of Springfield, * (Gill CDs # 1 and # 2 above merged in this account)

4. Shearson Lehman, California Federal Savings & Loan Certificate No. 4992344814 Issued 04-03-89 (3 month) ($100,000.00 FMV) (Plus all accrued interest)

5. Sunbelt Savings, Dallas, TX Certificate No. 0549797291 Issued 04-04-89 (1 year) ($50,000.00 FMV) (Plus all accrued interest)[.]”

On page 37 the decree reads:

“... Robert ... shall take all necessary steps to complete within thirty (30) days from the date of this Decree the transfer to ... Sue ... and the vesting thereof in the name of [Sue], and delivery to [Sue] assets from the Robert H. Melton, D.D.S., P.C., Pension and Profit Sharing Plan, equal to one-half the total value thereof but not less than the fair market value of $165,260.00, and for which sum ... Sue ... shall have judg[235]*235ment against ... Robert ... until pension and profit sharing assets equal to said sum are delivered and vested in [Sue’s] name by [Robert]. Interest shall not accrue on said judgment if said pension plan assets are timely transferred as provided herein, except beginning thirty-one (31) days from the date of this Decree. The cost of said transfer shall be at [Robert’s] separate expense. [Robert] shall, within forty-five (45) days from the date of this Decree, file a written report with the Court evidencing what assets have been transferred to [Sue] and the value thereof at the time of transfer, and shall verify delivery of the documents of ownership to [Sue] by providing a copy of the written receipt thereof signed by [Sue] or other documents establishing delivery thereof.”

Sue’s motion of September 21, 1990, averred the assets in the Plan2 as of the date of the dissolution decree were:

Puget Sound Power & Light Co., common stock, 74.0324 shares @ $20.53 per share $ 1,519.88

Lodge of the Ozarks, Inc., 25,000 shares @ $1 par value 25,000.00

Empire Bank special account, “Securities Account” 165,476.76

Empire Bank certificate of deposit number 000083479 54,653.51

Shearson Lehman Hutton Inc., account number 499-23448-14 (combined money funds and stocks) 116,763.98

Sunbelt Savings certificate number 0549797291 50,000.00

The aggregate value of the above assets, according to Sue’s motion, is $413,414.11. (Our addition produces a sum of $413,-414.13.) Consequently, pled Sue, the value of her half interest in the Plan should be declared to be $206,707.05.

At the hearing on her motion, Sue pointed out that in the decree, the trial court gave the Empire Bank special account “Securities Account” an aggregate value of $120,758.06 as of July 12, 1988 (some 22 months prior to the decree). Sue presented to the trial court a 40-page document (Exhibit D) identified as a statement of activity in that account from July 12,1988, through the date of the decree.

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Cite This Page — Counsel Stack

Bluebook (online)
816 S.W.2d 232, 1991 Mo. App. LEXIS 1317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/melton-v-melton-moctapp-1991.