Wagoner v. Wagoner

76 S.W.3d 288, 2002 Mo. App. LEXIS 1200, 2002 WL 1134089
CourtMissouri Court of Appeals
DecidedMay 31, 2002
DocketNo. WD 59945
StatusPublished
Cited by2 cases

This text of 76 S.W.3d 288 (Wagoner v. Wagoner) 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
Wagoner v. Wagoner, 76 S.W.3d 288, 2002 Mo. App. LEXIS 1200, 2002 WL 1134089 (Mo. Ct. App. 2002).

Opinions

LISA WHITE HARDWICK, Judge.

Benson Wagoner (Husband) appeals the judgment dissolving his marriage to Patricia Wagoner (Wife). He claims there was insufficient evidence to support the finding that the marriage was irretrievably broken, and that the trial court erred in precluding cross-examination of wife regarding her valuation of certain marital assets. We affirm in part and reverse in part.

Factual and Procedural History

Husband and Wife were married on March 7, 1964. For most of the marriage, Husband worked for the Kansas City Police Department. After retiring in 1994, Husband’s income derived almost exclusively from retirement funds and from his operation of a “mobile disco” at wedding receptions and similar social gatherings.

Wife worked during the marriage as a dental assistant for twenty-eight years. The dental office had a small staff and required her to work an average of fifty to fifty-five hours per week. She was still employed as a dental assistant at the time of the dissolution.

On August 24, 2000, Wife filed a dissolution petition alleging the marriage was irretrievably broken. She sought a division of the marital property and restoration of her maiden name. The parties’ only child was emancipated at the time the dissolution was filed.

Husband filed an answer denying the marriage was irretrievably broken. He sought dismissal of the dissolution petition and a court order for marital counseling. Wife filed a reply, alleging Husband had behaved in such a way that she could no longer be expected to live with him.

After an evidentiary hearing, the trial court declared the marriage irretrievably broken and entered a judgment of dissolution. The court divided the marital estate [290]*290by awarding approximately 53.5% to Wife and 46.5% to Husband. Husband appeals.

Standard of Review

This court must affirm a dissolution judgment 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. Crews v. Crews, 949 S.W.2d 659, 663 (Mo.App. W.D.1997). The burden of demonstrating error is on the party challenging the divorce decree. Lewis v. Lewis, 978 S.W.2d 64, 66 (Mo.App. W.D.1998). We will review the evidence and any reasonable inferences therefrom in the light most favorable to the trial court’s judgment. Thomas v. Thomas, 989 S.W.2d 629, 633 (Mo.App. W.D.1999).

Sufficiency of Evidence to Support the Dissolution

A trial court is authorized to dissolve a marriage upon a finding that it is irretrievably broken. § 452.3201. If the respondent in a dissolution action denies the marriage is irretrievably broken, the court must hear evidence and determine whether the petitioner can satisfy one or more of the following facts to warrant dissolution of the marriage:

(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
(d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
(e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition ....

Section 452.320.2(1)

In the instant case, the trial court heard evidence on Wife’s allegation, pursuant to § 452.320.2(l)(b), that Husband behaved in such a way that she could not reasonably be expected to live with him. Wife testified that she had a good relationship with Husband in the early years, but it deteriorated over thirty-seven years of marriage. Husband eventually chose not to participate in couples’ retreats and activities when asked, stopped attending church with Wife, and refused to attend marriage counseling with her because he didn’t feel it was necessary. The parties maintained separate finances, and Wife did most of the household chores and repairs.

Wife’s mother had been in bad health since the early 1990’s. Starting in October 1999, Wife and her sister would alternate evenings at their mother’s home to care for her. This required Wife to leave her job at the end of the business day and go directly to her mother’s home. Husband seldom accompanied Wife on these evenings.

Finally, on Thanksgiving Day 1999, Husband sent Wife an e-mail “ultimatum” stating, “I want a woman home 24 hours a day to love, not one that comes home every other day. Find another way or else.” When Wife told Husband she needed his [291]*291support because working and caring for her mother was difficult, he suggested she sell her North Carolina property and use the proceeds to hire someone to care for her mother.

Wife testified that even when she was home, Husband normally stayed downstairs in the family room watching television or playing records. During the whole month of July 2000, when she was home during vacation from work, Husband spoke to her only once. On cross-examination, Wife said the amount of time she spent caring for her mother brought an already bad relationship “to a head,” but it was not the reason she and Husband did not do things together. She said they were sexually active prior to Thanksgiving 1999, but Husband had not attempted intimacy with her since then.

Husband testified that he had a good relationship with Wife prior to 1999. He showed an active interest in her activities by arranging for the purchase of a recreation club membership and numerous yearly vacations to North Carolina. He set up an account at the police credit union to benefit Wife in case of emergency; and he had made several efforts to involve Wife in marriage counseling since the filing of the dissolution petition. Husband blamed Wife’s work schedule and her time away caring for her mother as the reason for their lack of intimacy, lack of communication, and diminished relationship.

When questioned about his response to Wife’s request for more support and additional help in November 1999, Husband acknowledged his suggestion that Wife sell her North Carolina property (gifted to Wife by her grandmother) and use the money to get professional help for her mother. He acknowledged communicating with Wife primarily by e-mail. He admitted he probably had not spoken to Wife for the whole month of July 2000, despite the fact she was working full time, caring for her mother, and had health problems of her own.

Based on this evidence, the trial court concluded the marriage was irretrievably broken and made the following factual findings:

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Related

Simpson v. Strong
234 S.W.3d 567 (Missouri Court of Appeals, 2007)
Shelby v. Shelby
130 S.W.3d 674 (Missouri Court of Appeals, 2004)

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Bluebook (online)
76 S.W.3d 288, 2002 Mo. App. LEXIS 1200, 2002 WL 1134089, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagoner-v-wagoner-moctapp-2002.