Oetterer v. Oetterer

60 S.W.3d 48, 2001 Mo. App. LEXIS 2054, 2001 WL 1463340
CourtMissouri Court of Appeals
DecidedNovember 20, 2001
DocketNo. ED 78836
StatusPublished
Cited by4 cases

This text of 60 S.W.3d 48 (Oetterer v. Oetterer) 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
Oetterer v. Oetterer, 60 S.W.3d 48, 2001 Mo. App. LEXIS 2054, 2001 WL 1463340 (Mo. Ct. App. 2001).

Opinion

PAUL J. SIMON, Judge.

Julia Oetterer (wife) appeals the judgment dissolving her marriage to Randy Oetterer (husband). On appeal, wife contends that the trial court erred when, in an attempt to equalize the division of marital property and debt, it ordered husband to pay her $4,500 because such ruling erroneously “declared and/or applied the law” in that the trial court failed to take into account the amount of marital debt encumbering the marital portion of wife’s profit sharing plan and wife’s separate house and thereby incorrectly valued those assets at their gross value of $16,500 rather than their net value of zero. Husband argues on appeal that this court is without jurisdiction as wife did not timely file her Notice of Appeal. We affirm in part and reverse and remand in part.

The judgment will be affirmed unless it is unsupported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law. Langdon v. Langdon, 792 S.W.2d 645, 646 (Mo.App. E.D.1990). We view the evidence and inferences therefrom in the light most favorable to the judgment and disregard contrary evidence. Id. It is the function of the trial court to decide the weight and value to be given to the testimony of any witness. Id. Further, “we defer to the trial court even if the evidence could support a different conclusion.” Id.

In the light most favorable to the judgment, the evidence indicates that husband and wife were married in Franklin County on October 11, 1996 and separated in January of 2000. No children were born of the marriage.

Prior to and throughout the marriage, wife was employed as a secretary at a law firm. Wife participated in the firm’s profit sharing plan which increased substantially [50]*50in value during the marriage. Husband was self-employed in his scrap salvage business prior to and throughout the marriage.

Following their marriage, husband and wife lived together on South Door Ford Road in Sullivan, Missouri (Door Ford property) until October of 1999, when they purchased a house on Cleavesville Road in Bland, Missouri (Cleavesville property). Wife had purchased the Door Ford property in 1985 and retained it following the purchase of the Cleavesville property.

During the course of the marriage, wife made three loans from her profit sharing plan. The first loan was for $2,000 and she used the proceeds to make improvements on the Door Ford property. The second and third loans were for $3,500 and $6,000 respectively. Wife transferred the proceeds from the second and third loans to husband for the purchase of equipment for his business. Wife also took out a second mortgage on the Door Ford property in the amount of $10,000. Wife used $3,000 of this amount for her personal debts, and the other $7,000 to satisfy two of husband’s debts for the purchase of business equipment.

Husband made several improvements to the Door Ford property during the course of the marriage. Husband paid to re-shingle the house and for miscellaneous supplies, replaced a well, and re-enforced a rock driveway. Scrap metal was also stored on the Door Ford property.

On January 7, 2000, wife filed a Petition for Dissolution of Marriage seeking maintenance, and filed her Statement of Income and Expenses and Statement of Property. Husband answered denying wife’s allegation that she was in need of maintenance and filed a Cross Petition for Dissolution of Marriage. Wife subsequently waived her maintenance request.

The dissolution hearing was held and at the close of the evidence, the trial judge stated from the bench: “Okay, the Court finds it has jurisdiction over the marriage; marriage is irretrievably broken, and it’s ordered to be dissolved. Somebody take notes here so a Judgment can be prepared.” The trial judge announced a proposed division of property contemplating the following: Wife was to be awarded the marital portion of the increase in value of her profit sharing plan, valued at $11,000; and a motor vehicle of nominal value. Both were described as marital property. Husband was to be awarded the Cleaves-ville property, valued at $6,000; his salvage business, valued at $20,000; and the scrap metal located on the Door Ford property, valued at $5,000. While the Cleavesville property was described as marital property, the property status of husband’s business and the scrap metal was not identified. Wife was also to be awarded the following separate property: The non-marital portion of her profit sharing plan, the Door Ford property, and miscellaneous personal property. Under the proposed division, husband was to pay $11,000 to wife which would be representative of the $16,500 lent by wife to husband for his business from wife’s profit sharing plan and the second mortgage less the $5,500 in improvements made by husband to the Door Ford property. The judge stated that such payment “.... ought to about balance this thing out. Maybe a thousand or $2,000 off either way, but I’m not going to worry about that.” Wife’s attorney was ordered to file a draft of the judgment to be signed by the judge.

On August 15, 2000, husband’s attorney by letter requested “two changes” in the judgment draft. He stated that he did not recall the judge “suggesting that husband make every effort to refinance the residence within 60 days and to remove [wife’s] name from the same,” and request[51]*51ed the omission of said language from the draft. He further requested that the legal description to the Cleavesville property be included in the judgment, “so the [judgment] can operate as a deed to the property.” On August 16, 2000, wife’s attorney virote a letter to the judge stating that he did not have any problems with the requested changes.

On August 17, 2000, the judge wrote a letter to both attorneys acknowledging receipt of the judgment draft and stating that he believed that it was necessary to modify the disposition he announced from the bench at the close of the hearing and that the “moneys advanced by [wife] from her separate funds were in the nature of an investment by her in a business that was and continues to be a marital asset.” He valued the business at $20,000 and the Cleavesville property at $5,500 after debt, for a total of $25,500 for husband; and valued the “marital portion of the profit-sharing plan at $11,000 and determined that $5,500 of [wife’s] house’s value was attributable to [husband’s] efforts, for a total of $16,500.” He concluded that payment by husband to wife of $4,500 “would equalize the distribution.” No mention was made of the $5,000 in scrap metal or of the motor vehicle of nominal value.

On October 31, 2000, a judgment was entered awarding wife the marital portion of the increase in value of $11,000 in her profit sharing plan and the motor vehicle of nominal value. The $11,000 increase was specifically described as marital but the status of the motor vehicle was not stated. Wife was also awarded the non-marital portion of her profit sharing plan, the Door Ford property, and miscellaneous personal property as her separate property. Husband was awarded the Cleavesville property, which was identified as marital property, valued at $6,000; “his” salvage business, a “sole proprietorship,” valued at $20,000; and the scrap metal on the Door Ford property, valued at $5,000. While the Cleavesville property was described as marital property, the judgment was silent as to the property status of husband’s business and the scrap metal.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Saettele v. Saettele
560 S.W.3d 921 (Missouri Court of Appeals, 2018)
Pollard v. Pollard
401 S.W.3d 506 (Missouri Court of Appeals, 2013)
In Re Marriage of Elliott
179 S.W.3d 323 (Missouri Court of Appeals, 2005)
Pruitt v. Pruitt
94 S.W.3d 429 (Missouri Court of Appeals, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
60 S.W.3d 48, 2001 Mo. App. LEXIS 2054, 2001 WL 1463340, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oetterer-v-oetterer-moctapp-2001.