Smith v. Smith

Missouri Court of Appeals

Smith v. Smith

702 S.W.2d 505, 1985 Mo. App. LEXIS 3837

CourtMissouri Court of Appeals

DecidedDecember 19, 1985

Docket13888

StatusPublished

Cited by27 cases

This text of 702 S.W.2d 505 (Smith v. Smith) 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

Smith v. Smith, 702 S.W.2d 505, 1985 Mo. App. LEXIS 3837 (Mo. Ct. App. 1985).

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Opinions

MAUS, Judge.

Upon the petition of the husband, the trial court dissolved a marriage of 10 years’ duration. The custody of two children, ages 5 and 7, was awarded to the wife. The husband was granted six weeks’ temporary custody during the summer and reasonable visitation. The wife, among other things, contends the trial court awarded inadequate child support, inadequate maintenance and made an unjust division of marital property.

The husband has filed a motion to dismiss the wife’s appeal because she received $225.02 under a garnishment issued upon the judgment of dissolution. He relies upon the general rule that one may not proceed upon a judgment and attack it on appeal. Knebel v. Knebel, 189 S.W.2d 464 (Mo.App.1945).

However, “this rule has its exceptions.” Knebel v. Knebel, supra, at 466. See Annot., Divorce Appeal—If Benefits Accepted, 29 A.L.R.3d 1179 (1970). Whether or not the acceptance of partial payment of a judgment constitutes an exception is to be decided on a case by case basis considering all relevant circumstances. Included in the factors which have been considered in finding such an acceptance to be an exception to the general rule are the following: The amount received was a small portion of the total judgment, Block v. Block, 593 S.W.2d 584 (Mo.App.1979); the amount accepted has effectively been conceded to be due by a husband who did not appeal, In re Marriage of Abild, 243 N.W.2d 541 (Iowa 1976); the acceptance of benefits was due [507]*507to financial distress, Haggard v. Haggard, 550 S.W.2d 374 (Tex.Civ.App.1977); the absence of prejudice to the judgment debtor husband, In re Marriage of Abild, supra; and where the only issue on appeal is whether an award will be increased, Esposito v. Esposito, 158 N.J.Super. 285, 385 A.2d 1266 (1978); Anderson v. Anderson, 72 Wis.2d 631, 242 N.W.2d 165 (1976). It has been observed “the general rule pertaining to acquiescence in judgments should not be strictly applied in divorce cases because of the peculiar situations of the parties and the equitable considerations involved.” Gordon v. Gordon, 218 Kan. 686, 545 P.2d 328, 333 (1976).

The instant execution and garnishment were issued in enforcement of that portion of the decree awarding $1,600 to the attorneys for the wife and the lump sum of $3,000 to the wife. The execution was requested by the wife’s attorney. The record shows that $225.02 was paid under that garnishment to that attorney. The amount so paid is but a fraction of that portion of the judgment. The husband has not appealed. The briefs establish the issue on appeal is whether those portions of the judgment and other awards to the wife will be increased. Considering these circumstances, the receipt of the $225.02 by the wife falls within an exception to the general rule relied upon by the husband. The motion is denied.

A brief sketch of the facts necessary to the disposition of the issues follows. The parties were married April 28, 1973 in New Jersey. They lived there until the husband was transferred by his employer. The wife worked until the birth of their first child in 1976. She worked as a secretary to a congressman and as a real estate secretary for a law firm. After the birth of the first child, by mutual understanding, she did not work outside the home. At the time of the trial, the husband’s salary was $2,655 per month. His net take home pay was $1,975 per'month. He had investment income of $43 per month.

In June, 1982, the husband was transferred to the area of Salem. Soon thereafter, the parties bought a home in Salem for $69,000. Payments on the mortgage were approximately $600 per month. The basement of the home leaked. At the time of the trial, the parties had an action for damages of $20,000 pending against the sellers. The potential recovery was not estimated apart from the equity in the property. The parties also had claims with their insurance company for damage to the home and to personal property resulting from water pipes that had burst.

At the time of the trial, the wife and children yet lived in the home. There was testimony the husband could make the necessary repairs to the home. There was an estimate for repair to the basement for $4,500. There was also testimony the house should be repaired and sold. However, the wife protested, “We need a roof over our heads.” The house was awarded to the husband, with the wife permitted to live in it until October 16, 1984. The husband testified the wife could have the home if she wanted it.

After moving to Missouri, the husband maintained a relationship with a woman in New Jersey. The husband made six trips to New Jersey, only one with his family. He stipulated there was a sexual relationship with this woman. He said that relationship commenced in May, 1983, before the parties separated on November 28, 1983. The husband had given the woman a ring, but said he had no plans for marriage.

The trial court awarded the wife child support of $200 per month per child, excluding the six weeks’ summer temporary custody of the father, and maintenance of $250 per month for 12 months commencing April 15, 1984. Items of personal property were set apart to each party as their separate property. The marital personal property was divided and each party ordered to pay certain debts. The wife was awarded a judgment of $3,000 upon an unspecified basis and for an unspecified purpose.

As stated, the home, which was marital property, was awarded to the husband. This award included the refrigerator, washer, dryer, drapes and bar stools. He was [508]*508also awarded all interests in the pending claim for damages and claims for insurance proceeds. As her share in the home and that personal property, the wife was awarded a judgment of $15,000, due April 16, 1985, to bear interest after that date at the legal rate.

The wife vigorously contends she was awarded an inadequate share of the marital property. The trial court did not find the values of many items of marital property. Significantly, this is true of the parties’ claim for damages and claim for insurance proceeds. However, there are undisputed estimates of such values which are sufficient for consideration of such division. The cause need not be dismissed or remanded for a determination of such values. Dardick v. Dardick, 670 S.W.2d 865 (Mo. banc 1984).

Based upon the values found by the trial court and those estimates, the following is a summary of the division of the marital property made by the trial court.

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