Welsh v. Welsh

869 S.W.2d 802, 1994 Mo. App. LEXIS 120, 1994 WL 18473
CourtMissouri Court of Appeals
DecidedJanuary 25, 1994
Docket63592, 63678
StatusPublished
Cited by7 cases

This text of 869 S.W.2d 802 (Welsh v. Welsh) 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
Welsh v. Welsh, 869 S.W.2d 802, 1994 Mo. App. LEXIS 120, 1994 WL 18473 (Mo. Ct. App. 1994).

Opinions

KAROHL, Judge.

Husband appeals the entry of a decree of dissolution and alternatively claims error in the division, valuation and characterization of certain marital property. Wife cross-appeals claiming error in the classification and distribution of certain property and in the amount of maintenance awarded her. We affirm as modified.

The parties were married on June 21, 1975. They have no children together, but each has three children from prior marriages, all of whom are now adults. Wife filed a petition for dissolution of marriage on September 18, 1989. The hearing was held in September, 1992. The trial court dissolved the marriage and disposed of the property by decree entered on February 2, 1993. We review the issues under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We will not reverse the decree as long as there is substantial evidence to support it even if a different conclusion could have been reached.

In his first point, husband contends the trial court erred in granting a decree of dissolution. He denied wife’s allegation that there was no reasonable likelihood the marriage of the parties could be preserved and, therefore, that the marriage was irretrievably broken. He testified he did not want a decree of dissolution and was willing to attempt counseling. On appeal, he maintains wife failed to meet her burden of demonstrating the breakdown. We disagree.

Missouri has adopted a modified no-fault dissolution law rather than a true no-fault dissolution law. In re Marriage of Mitchell, 545 S.W.2d 313, 318 (Mo.App.1976). When one party denies under oath or affirmation that the marriage is irretrievably broken, § 452.320.2 RSMo 1986 provides that “the [804]*804court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation.” If the court makes a finding whether or not the marriage is irretrievably broken, it will be based on the petitioner having demonstrated one or more of the following facts:

(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;
(e) 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) RSMo 1986. Wife concedes she may rely only on (b) because none of the other categories apply to the facts. Therefore, the trial court’s finding that the marriage between the parties cannot be preserved and that the marriage is irretrievably broken depends solely on whether wife demonstrated that husband behaved in such a way that she could not reasonably be expected to live with him.

Husband cites several cases in support of his argument beginning with In re Marriage of Mitchell, 545 S.W.2d 313, 318 (Mo.App.1976). In Mitchell, husband filed the dissolution petition and wife denied his allegation of irretrievable breakdown. The court stated husband’s “sole reason for his inability to live with respondent was that he no longer loved her.” Id. at 319. In reversing the decree of dissolution, this court noted the “behavior in this record which would make it unreasonable to expect one of the parties to live with the other is essentially petitioner’s not respondent’s.” Id. at 320. Mitchell was written shortly after the Divorce Reform Law was enacted. We analyzed the new statute, noting the decline of the “fault concept” and the exception to “no fault” situations. We concluded that the legislature “intended that a spouse, who by his or her actions makes the life of the other spouse intolerable or whose behavior makes it unreasonable for the marriage to be expected to continue, should not profit by his or her own wrongdoing and thereby obtain a dissolution of the marriage over the objection of the other perhaps innocent spouse.” In re Marriage of Mitchell, 545 S.W.2d 313, 318 (Mo.App.1976).

Wife’s claim of irretrievable breakdown, in the present case, does not depend on any misconduct on her part. She attributes the breakdown to a pattern of behavior on the part of husband. She testified to specific misconduct to document the conclusion that husband was not compassionate or considerate. She testified husband, on May 12,1989, backed a van down their driveway, struck and knocked her down, and ran over her. He reversed direction and ran over her a second time. He knew she was on the driveway and intended to go to the mailbox at the end of the driveway. Although she characterized the event as an “accident,” she did not rule out the possibility her husband intended to hurt her. In her view, only husband knew what he intended. Wife adopted the date of that event as the date of separation after a fourteen year marriage. She testified she was physically and emotionally wounded.

Wife’s other evidence of husband’s conduct which the court could consider as a basis for concluding it would be unreasonable to expect wife to live with husband included: (a) husband falsely accused wife of causing an employee to leave the Welsh Company which concluded with husband saying to wife, “You are nothing. You do nothing.”; (b) husband embarrassed wife in public with anti-Semitic comments; (e) husband left wife for a business trip after she was injured by his operation of the van; and, (d) husband intentionally hit golf balls at wife across the backyard of the home. Wife offered to describe further examples of similar conduct.

[805]*805In general, husband denied any misconduct. He pointed to the fact the parties stayed in the same house for a year after the petition was filed and continued to appear together socially. He did not testify they lived together as husband and wife. To the extent there was a conflict in the evidence, the issue of irretrievable breakdown was for the court. There was substantial evidence to support a finding that husband behaved in such a way that wife could not reasonably be expected to continue to live with him as spouse.

Two other cases relied upon by husband are In re Marriage of Capstick, 547 S.W.2d 522, 523 (Mo.App.1977) and In re Marriage of Dillon, 559 S.W.2d 81 (Mo.App.1977). In both, the dissolution decree granted by the trial court was reversed for want of substantial evidence of irretrievable breakdown of the marriage. In both cases petitioner completely failed to meet the burden of proving misbehavior of spouse. In Dillon,

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Welsh v. Welsh
869 S.W.2d 802 (Missouri Court of Appeals, 1994)

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Bluebook (online)
869 S.W.2d 802, 1994 Mo. App. LEXIS 120, 1994 WL 18473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-welsh-moctapp-1994.