Sarandos v. Sarandos

643 S.W.2d 854, 1982 Mo. App. LEXIS 3344
CourtMissouri Court of Appeals
DecidedNovember 30, 1982
Docket43653
StatusPublished
Cited by8 cases

This text of 643 S.W.2d 854 (Sarandos v. Sarandos) 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
Sarandos v. Sarandos, 643 S.W.2d 854, 1982 Mo. App. LEXIS 3344 (Mo. Ct. App. 1982).

Opinion

SATZ, Judge.

In this cause, the husband appeals from a decree of dissolution. The trial court dissolved the marriage, awarded custody of the parties’ thirteen year old son to the wife, and awarded the wife $500 per month in child support. Further, the trial court awarded the wife $1,500 per month maintenance and divided the marital property. The husband appeals from the award of maintenance and the division of marital property. We affirm in part and reverse and remand in part.

The parties were married in 1955. They had three children. Only the youngest, a thirteen year old boy, was not emancipated at the time of trial. The husband admitted to a succession of extramarital affairs with various women during the course of the marriage. These affairs commenced within a year of the parties’ marriage and took place without the wife’s knowledge. In the latter years of the marriage, the husband admitted to the affairs and attempted to reconcile differences which arose with his wife. The attempts at reconciliation failed, the parties separated and this action for dissolution was initiated.

On appeal, the husband attacks the division of marital property arguing that it is not “just” as required by the dissolution statute § 452.330.1. He also attacks the award of maintenance on three separate grounds. The husband argues that maintenance was improperly awarded because (1) the wife can obtain employment to meet her reasonable needs (2) the wife possesses enough property from the division of marital property to comply with her needs and (3) the husband does not have enough spendable income to meet the total obligations of the decree. We find the division of marital property was within the court’s discretion and find the husband’s first two attacks on the maintenance award are without merit. However, the record does not disclose whether the husband has sufficient spendable income to satisfy the decree. We remand for a determination of this issue.

On this remand, we address and, hopefully, lay to rest the attack made by the husband on the court’s division of marital property. The husband argues that the division of marital property is so disproportionately weighted in favor of the wife that it is not a “just” division as required by the dissolution statute. § 452.330.1. Our response to this argument is complicated by the fact the trial court neglected to value a major asset of marital property. This asset was awarded to the husband and consists of stock held in two closely-held corporations: Pete’s Market Inc. and P & S Foods, Inc. The husband operates these two corpora *856 tions and draws salaries from each corporation of approximately $50,000 to $60,000 per year. His after-tax income in recent years has averaged about $78,000 per year. The husband, however, claims that he must lend back to one of the two corporations, P & S Foods, his entire net salary from that corporation after paying taxes on the gross amount. The husband claims it is necessary to lend this money back, because the corporation is under-capitalized and needs the money for working capital. At the time of trial, the husband’s “loans” to P & S Foods were not repaid and amounted to $128,710. The husband’s expert witness testified that the two corporations had a book value of $152,272, or $280,982 if the $128,710 in loans of the husband to P & S Foods were treated as paid-in-surplus (equity). The wife’s expert valued the corporations at $405,000 based upon a capitalization of income method of evaluation.

We have set out the division of marital property in two different schedules, which vary as to the value the trial court may have placed on the stock of the closely-held corporations. (See Schedules I and II). 1 If the corporate stock were valued at $400,000 (Schedule II) the value of the husband’s portion of the marital assets would be $283,955. Compared to the value of the wife’s portion, $424,550, the split would be 40% for the husband and 60% for the wife. If, however, the court considered the husband’s loans to P & S Foods as paid-in-surplus (equity) and valued the corporate stock at book value, the value of the corporate stock would approximate $300,000, and the husband’s share of the marital assets would equal $183,955. (See Schedule I). When this amount is compared to the wife’s share of $424,550, the division of the marital assets is 70% for the wife and 30% for the husband.

The record does not indicate what percentage distribution was intended by the trial court. 2 In its decree, however, the trial court specifically noted it “considered marital conduct in the division of the ... marital property.” With our scope of review limited by the standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), we believe that if the court accepted the $400,000 valuation and intended a 60-40 split, this was justified by the husband’s proven misconduct. Givens v. Givens, 599 S.W.2d 204, 205-206 (Mo.App.1980). We find a 70-30 split, created if the court adopted a $300,000 valuation, to be heavily weighted in the wife’s favor. Such a split, however, is supported by precedent, see Arp v. Arp, 572 S.W.2d 232, 235 (Mo.App.1978) and we cannot say it is a clear abuse of discretion. In Arp, the Western District upheld a 72-28 division of marital property based on the husband’s misconduct. Although smaller amounts were involved, in that case as here, the husband was awarded all the income producing property. Noting that “[t]he trial court is vested with broad discretion in the division of marital property” id. at 234, we will not overturn this portion of the decree.

The husband next argues that maintenance was improperly awarded because the wife can obtain employment to meet her reasonáble needs. Section 452.335.1 RSMo 1978 provides that the trial court can award maintenance “only if it finds that the spouse seeking maintenance ... (2) is unable to support himself through appropri *857 ate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.” The trial court has discretion in applying the provisions of § 452.335 RSMo 1978. In re Marriage of Powers, 527 S.W.2d 949, 954 (Mo.App.1975).

In the present case, the wife was 47 years old, had worked as a bookkeeper for 4 months when she was 18 and for the next five years had worked as a receptionist and in the mail room. Since she was 23, she has devoted her time to raising her three sons. She was awarded custody of the youngest son, a 13 year old boy. She was always at home raising the two older boys, who turned out well. She desired to continue to give the youngest son the same nurture and caring. Given the wife’s limited experience and her desire to stay home and raise her son, “[w]e find nothing unreasonable or arbitrary on the part of the wife in placing the welfare of her son above the possible financial burden on the boy’s father to provide maintenance.” In re Marriage of Prenavo,

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Bluebook (online)
643 S.W.2d 854, 1982 Mo. App. LEXIS 3344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sarandos-v-sarandos-moctapp-1982.