Mueller v. Mueller

782 S.W.2d 445, 1990 Mo. App. LEXIS 45
CourtMissouri Court of Appeals
DecidedJanuary 9, 1990
Docket55690, 55691
StatusPublished
Cited by14 cases

This text of 782 S.W.2d 445 (Mueller v. Mueller) 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
Mueller v. Mueller, 782 S.W.2d 445, 1990 Mo. App. LEXIS 45 (Mo. Ct. App. 1990).

Opinion

CARL R. GAERTNER, Judge.

In this dissolution of marriage action both parties have appealed, challenging certain of the financial provisions of the decree.

On November 9, 1963, husband and wife married. From this union, three children were born: Richard, August 27,1965; Daniel, March 25, 1969; and Ryan, September 27,1979. Over the years, the couple’s marriage encountered some difficulties, and by June, 1986, husband became involved in an adulterous relationship. Because of their continuing troubles, husband and wife separated on August 6, 1986. Soon after-wards, husband filed a Petition for Dissolution of Marriage alleging, in part, that their marriage was irretrievably broken. Wife filed an answer to husband’s petition in October, 1986, but did not admit that their bond was irretrievably broken until more than a year later.

On October 14, 1988, the trial court issued an amended Decree of Dissolution granting wife custody of the couple’s two minor children and awarding wife property valued at $76,877. This decree provided for wife to receive $700 per month in unallocated child support and $350 per month in statutory maintenance. The trial court awarded husband marital property valued at $93,808 and ordered husband to pay a one-time cash payment of $12,000 to wife and $5,000 to wife’s attorneys. Additionally, various marital debts were allocated to husband. This appeal and cross appeal followed. We affirm.

The trial court’s decree of dissolution must be affirmed if the judgment is supported by substantial evidence, is not against the weight of the evidence, and neither erroneously declares nor applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Furthermore, the trial court is vested with considerable discretion to divide marital property; an appellate court should only interfere if the division is so heavily and unduly weighted in favor of one party as to amount to an abuse of discretion. In re Marriage of DeFrates, 711 S.W.2d 555, 556 (Mo.App. 1986).

In his first point, husband claims that the trial court erred in its division of marital property and allocation of marital debt. Based upon his own calculations, husband concludes that after the $12,000 cash payment to wife and his payment of the marital debts allocated to him, he is left with 42 percent of the marital property. He argues this disproportion reflects a punishment for his adulterous conduct. Citing D'Aquila v. D'Aquila, 715 S.W.2d 318, 320 (Mo.App.1986), he charges the trial court with improper “judicial censure” stemming from “inordinate focus on a particular incident or series of incidents” in a marriage of long duration. He is particularly upset *447 over what he characterizes as the inconsistent trial court finding that wife “behaved in such a manner that [husband] cannot reasonably be expected to live with her, though such behavior does not warrant a disproportionate division of marital property,” but that his adulterous relationship, which “pre-existed the parties’ separation and began at a time when the parties’ marriage was not otherwise irretrievably broken,” did warrant a disproportionate division.

We perceive no need to undertake a detailed recitation of the evidence in an effort to show the reasonableness, vel non, of the trial court’s conclusion. Our concern is the propriety of the result reached by the trial court, not the route by which it was reached. Salcedo v. Salcedo, 693 S.W.2d 875, 877 (Mo.App.1985); Nedblake v. Nedblake, 682 S.W.2d 852, 855 (Mo.App. 1984). The determination made by the trial court is justified by any one or a combination of a number of well-established principles which serve to guide us and trial judges in the division of marital property. “[T]he desirability of awarding the family home to a wife with a low-paying job and custody of minor children can create a situation where equity requires that the wife receive the bulk of the marital assets.” Burbes v. Burbes, 739 S.W.2d 582, 585 (Mo.App.1987). This maxim is particularly appropriate in eases such as this where the marital residence is by far the largest single marital asset.

The economic circumstances of the parties, § 452.330.1(3) RSMo.1986, which include each party’s individual capacity to work and to earn, should be considered. Mika v. Mika, 728 S.W.2d 280, 283 (Mo. App.1987). Wife has worked off and on during the marriage, primarily as a receptionist. During 1987, she was paid $5.00 per hour for a 24 hour work week. She has a high school education but no particular job skills. Husband has been employed by Union Electric for over 20 years. He has worked up to a position of construction superintendent with a 1987 income of $62,-327.

The balance between income and non-income producing property is an important factor. Divine v. Divine, 752 S.W.2d 76, 79 (Mo.App.1988). Wife was awarded three IRA accounts in her name with a total value $1,703.13, plus the house encumbered with a mortgage she is to pay, two cars and household furnishings. Husband was awarded 352 shares of Union Electric Stock, his vested pension with present value of $28,000, funds in a Union Electric savings plan valued $13,379, his Union Electric Employee’s Stock Ownership Plan valued at $31,747, an annuity valued at $5,631 and IRAs valued at $5,963. Obviously, the assets awarded to wife have a potential for depreciation and expense; those to the husband, income and appreciation. Of course, misconduct imposing a burden or hardship on the other party should be considered. § 452.330.1(4) RSMo.1986; Mika v. Mika, 728 S.W.2d at 284. However, in this case, there is ample support and justification for the trial court’s division of property even if we disregard the complained of finding which seems to be nothing more than the court’s conclusion that husband’s infidelity, after a marriage in which neither spouse was perfect, was the proverbial straw that broke the camel’s back.

Husband next challenges the trial court’s order of $700 per month in unallocated support for the parties’ two minor children. Husband contends that the trial court erred in awarding unallocated child support since Daniel, at age 19, is on the verge of emancipation.

The trial court has considerable discretion in setting awards of child support. This court will not substitute its judgment for that of the trial court’s absent a manifest abuse of discretion, Wise v. Crawford, 695 S.W.2d 487, 491 (Mo.App.1985), and we find no such abuse here. Neither the statute nor case law requires allocation of child support.

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Bluebook (online)
782 S.W.2d 445, 1990 Mo. App. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mueller-v-mueller-moctapp-1990.