Tambone v. Tambone

162 S.W.3d 1, 2004 Mo. App. LEXIS 1766, 2004 WL 2590497
Missouri Court of Appeals·Decided November 16, 2004·No. No. ED 83627·Published·Cited by 3 cases

Opinion

GEORGE W. DRAPER III, Chief Judge.

Tracy L. Tambone (hereinafter, “Wife”) and Gregorio Tambone (hereinafter, “Husband”) were married on May 28, 1992. During their marriage, twin children were born. Wife and Husband separated in December 2001. Wife and Husband stipulated that conduct of both parties was not at issue and Wife would receive custody of their minor children. Hence, the only issues for the trial court to determine were division of the marital estate, and awards of maintenance and child support. After a three-day trial, the trial court issued its judgment dissolving their marriage on September 18, 2003. This appeal and [3]*3cross-appeal follow, raising issues of property division and child support. We reverse and remand.

Provisions in a decree of dissolution will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, they erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We view the evidence and all permissible inferences therefrom in the light most favorable to the trial court’s decree, and we disregard all contrary evidence and inferences. Mehra, 819 S.W.2d at 353. Further, we defer to the trial court’s determination of the credibility of the witnesses. In re Marriage of Novak, 83 S.W.3d 597, 600 (Mo.App. E.D.2002).

In his first point on appeal, Husband claims the trial court erred in its division of the marital property for three reasons. He alleges the trial court failed in: (1) dividing the marital property in a just and equitable manner; (2) assigning a negative value to a portion of the debt assigned to him; and (3) including the full amount of debt assigned to him in its calculation of marital property on the distribution schedule. Husband believes this creates an extremely disproportionate division of marital property.

“The trial court is vested with considerable discretion in dividing marital property and an appellate court will interfere only if the division is so heavily weighted in favor of one party as to amount to an abuse of discretion.” In re Marriage of Duvall, 67 S.W.3d 736, 740 (Mo.App. E.D.2002). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances of the case before it and is so arbitrary and unreasonable as to shock this Court’s sense of justice. Schroeder v. Schroeder, 59 S.W.3d 607, 609 (Mo.App. W.D.2001). Section 452.330.1 RSMo (2000)1 sets forth nonexclusive factors for the trial court to consider in its division of marital property: (1) the economic circumstances of both parties at the time of the property division and the desirability of the custodial parent to be awarded the family home; (2) the contribution of both parties to the accumulation of marital property; (3) the value of each party’s separate property; (4) conduct of the parties during the marriage; and (5) the custodial arrangements for the minor children.

The trial court took each of these factors into consideration in its judgment, including specifically, as per their pre-trial stipulations, not making a determination as to the conduct of Husband and Wife. Husband, however, complains the trial court erred in dividing the debt from the home equity loan and their tax refund check.

Wife concedes $23,000 of the home equity loan was characterized as a positive distribution to Husband when it should have been a debt attributable to her. Accordingly, upon remand, the trial court is directed to allocate this loan as a debt to Wife in its re-division of their marital property.

Husband also claims the trial court erred in assigning $7,000 of the home equity loan to him as sanctions. The trial court found that in December 2002, Husband increased the amount of the home equity line of credit by $6,500. This increase was made while the parties were separated and without Wife’s knowledge or consent. Husband argues Wife knew of the increased amount. However, we defer credibility determinations to the trial [4]*4court, which found Wife did not know of the increased line of credit against her name. Novak, 83 S.W.3d at 600. The trial court ordered Husband to pay $7,000 on the home equity loan, accounting for the additional increase, as accrued interest, and a sanction to Husband for not receiving Wife’s consent.

Imposing sanctions of a flat fine to Husband was not an abuse of the trial court’s discretion. The fine was compensatory in nature and related to the actual damages suffered by Wife. Smith v. White, 67 S.W.3d 742, 747 (Mo.App. W.D.2002). Husband argues this should be divided as part of the marital estate. However, it stands to reason that sanctions imposed against one party should not be attributable against the party who was harmed. The trial court did not abuse its discretion in imposing sanctions against Husband and not including them as part of the marital estate.

In his last argument relating to this point, Husband argues that the trial court improperly ordered him to pay Wife $7,453 from the tax refund check he received. The trial court found Husband obtained Wife’s signature on their joint tax return under the guise of dividing the refund with her. Husband failed to do so. “Proceeds from federal and state tax refunds are presumed to be marital property and subject to division by the trial court.” Kester v. Kester, 108 S.W.3d 213, 222 (Mo.App. S.D.2003). This amount was included in the judgment in the marital distribution chart. The trial court determined this amount was owed to Wife, and we find no suggestion that the trial court abused its discretion.

Husband’s second point on appeal claims the trial court erred in classifying the proceeds from Wife’s wrongful death claim for her mother’s death as separate property. Husband contends those proceeds were acquired during the marriage and did not qualify as separate property.

While Husband and Wife were married and living together, Wife’s mother died. Wife, her sister, and her father brought a wrongful death suit, seeking to be compensated for their untimely loss of their relative. Husband did not support, nor did he participate in, this suit. The wrongful death suit settled, and Wife’s portion of the settlement was distributed to her while Husband and Wife were separated. Wife placed these proceeds in her separate account. Husband believes the trial court erred in allowing Wife to retain the settlement proceeds as separate property rather dividing the proceeds as part of the marital estate.

All property acquired during a marriage is presumed to be marital property. Section 452.330.3. However, there are exceptions to this maxim. A party may overcome the presumption of marital property by demonstrating the property is within one of the categories delineated by Section 452.330.2; this includes property acquired b.y gift, bequest, devise or descent. Section 452.330.2(1).

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Tambone v. Tambone, 162 S.W.3d 1, 2004 Mo. App. LEXIS 1766, 2004 WL 2590497 (Mo. Ct. App. 2004).

162 S.W.3d 1 (Tambone v. Tambone) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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