Test v. Test

872 S.W.2d 620, 1994 Mo. App. LEXIS 484, 1994 WL 88012
CourtMissouri Court of Appeals
DecidedMarch 22, 1994
DocketNo. WD 47636
StatusPublished
Cited by7 cases

This text of 872 S.W.2d 620 (Test v. Test) 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
Test v. Test, 872 S.W.2d 620, 1994 Mo. App. LEXIS 484, 1994 WL 88012 (Mo. Ct. App. 1994).

Opinion

KENNEDY, Presiding Judge.

Wife appeals from portions of legal separation/dissolution decree which divided marital property and which awarded her maintenance.

I. DISTRIBUTION OF MARITAL ASSETS AND DEBTS

Wife’s complaint about the division of marital property is that the trial court awarded her too little. The trial court awarded wife $13,500, to be paid to her in a lump sum by husband, and a 1985 Ford Escort. To husband, it awarded the remaining marital property ($104,343) and placed upon him the duty to pay $62,606 in marital debts.

Our standard on appeal is to sustain the trial court’s decree unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991), citing Murphy v. Catron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Wife claims, in her first point on appeal, that the trial court’s intention was to award her an amount equal to one-half the $105,343 value of the marital property, as determined by the trial court, net of one-half the marital debts. That net figure was $41,436, one-half of which would be $20,718.

If the award of $13,500 was a clerical or a mathematical error, as wife contends, wife did not take the opportunity to bring the error to the attention of the trial court. The court announced that award from the bench on February 23, 1993, after hearing the evidence, and followed it on March 16,1993 with a formal decree with findings of fact and conclusions of law. In the court’s oral findings after hearing the evidence, it stated the marital estate netted $88,000, and the debts $61,000, and it would divide the $27,000 equally. Thus, the award to wife was $13,-500.

True it is that, in its later formal findings of fact, the court found the valuations of various items of property which, added together, amounted to $105,343. Then at the end of the judgment, this paragraph: “Husband shall pay to wife the amount of $13,500 to equalize the distribution of marital assets.” The trial court, after the evidentia-ry hearing and before the formal findings and judgment, may have reconsidered the value of the property and may have concluded it was worth more than it had earlier thought. Still it awarded $13,500 rather than a higher figure. We place no decisive importance on the court’s use of the term “equalize” in its explanation of the $13,500 award; it did not necessarily use the term in its exact sense. Where a party has not drawn the trial court’s attention to an alleged clerical or mathematical error, he or she must make a clear case such a mistake has been made, or of inequity, before we would undertake to correct the same. See Hautly Cheese Co. v. Wine Brokers, Inc., 706 S.W.2d 920, 923 (Mo.App.1986). The trial court did not err in awarding wife $13,500.

In her second point on appeal, wife says the trial court, if it intended to award her $13,500, abused its discretion in failing to award her fifty percent of the marital assets. Section 452.330, RSMo Supp.1993, requires the court to divide marital property as it deems just after considering all relevant factors. It is of course not required that the court divide marital assets equally, but only equitably. Mehra, 819 S.W.2d at 357; Sinclair v. Sinclair, 837 S.W.2d 355, 359 (Mo. [623]*623App.1992); Calia v. Calia, 624 S.W.2d 870, 872 (Mo.App.1981).

We are unable to say the trial court’s division was inequitable. The marital property awarded to husband was largely illiquid. A farm, a pension plan, and farm equipment were the largest items. The debts to be paid by him included a Farmers Home Administration debt of $51,617. The other debts appeal’ to be short term obligations. The character of the assets awarded to each party is to be taken into account, as well as their value. See Ottmann v. Ottmann, 829 S.W.2d 644, 646 (Mo.App.1992). The judgment will add to husband’s debt $13,500 payable to wife, plus $2,226.28, representing one-half her attorney’s fee. He owed his own attorney $1,600 at the time of trial, and had earlier paid him $1,700.

We will not find the trial court abused its discretion in dividing the marital property as it did.

II. MAINTENANCE

Wife argues, in her third point on appeal, that the trial court erred in limiting maintenance to a term of three years prospectively terminated if she were to obtain 20 hours per week employment at minimum wage or receive social security disability payments. Wife contends it was an abuse of discretion to limit maintenance to a term of three years since no evidence was presented at the hearing showing that in three years she would be in a better economic or physical condition. We agree and modify the term of the maintenance award.

The trial court has broad discretion in determining the amount and duration of maintenance to award in a dissolution action pursuant to section 452.335, RSMo Supp. 1993. Hicks v. Hicks, 859 S.W.2d 842, 846 (Mo.App.1993); Smith v. Smith, 840 S.W.2d 276, 277 (Mo.App.1992). The court in Hicks summarized the trial court’s decision to limit maintenance as follows:

A decision to limit maintenance is justified only where substantial evidence exists of an impending change in the financial condition of the parties.... At a minimum there must be substantial evidence to support a reasonable expectation that such a change will occur.... Maintenance should not be prospectively terminated if there is no evidence or reasonable expectation that the circumstances of the parties will be markedly different in the future.

Hicks, 859 S.W.2d at 847, citing May v. May, 801 S.W.2d 728, 731 (Mo.App.1990). Accord Smith, 840 S.W.2d at 277. “Because of the justification required for maintenance awards of limited duration, the judicial preference is for awards of maintenance of unlimited duration.” Smith, 840 S.W.2d at 277.

Section 452.335.1 sets forth the two-prong approach the court must follow in granting maintenance. The trial court stated in its findings of fact and conclusions of law that wife is entitled to maintenance under the first prong because “she lacks sufficient property including marital property proportioned to her to provide for her reasonable needs.” Section 452.335.1(1). That wife satisfies the second prong, inability to support oneself through appropriate employment, is implicit in the court’s award of maintenance. Section 452.335.1(2). However, the court did state that it was unable to determine the extent of wife’s employment disability. Relevant factors the court must take into consideration when determining the maintenance amount and duration are set forth in section 452.335.2. The trial court’s findings, conclusions, and entry of judgment essentially tracked this section.

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872 S.W.2d 620, 1994 Mo. App. LEXIS 484, 1994 WL 88012, Counsel Stack Legal Research, https://law.counselstack.com/opinion/test-v-test-moctapp-1994.