Opinion
No. WD 53748
Order Filed: November 4, 1997
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY, THE HONORABLE RANDALL R. JACKSON, JUDGE
George W. Richardson, Kansas City, for appellant.
Craig D. Ritchie, St. Joseph, for respondent.
Before Ulrich, C.J.; Breckenridge and Spinden, JJ.
ORDER
Judy S. Holmes appeals from the decree of dissolution of marriage terminating her marriage to David Allen Holmes. She contends that the trial court erred in dividing the marital property by awarding Mr. Holmes all of the couple's real estate. The judgment is affirmed. Rule 84.16(b).
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the judgment.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION .
Judy S. Holmes appeals from the decree of dissolution of marriage terminating her marriage to David Allen Holmes. She contends that the trial court erred in dividing the marital property by awarding Mr. Holmes all of the couple's real estate. The judgment is affirmed. Rule 84.16(b).
FACTS
On October 17, 1995, Judy Holmes (Wife) filed a Petition for Dissolution of Marriage from her husband David Holmes (Husband). The couple had been married since May 12, 1979. No children were born of the marriage. The parties owned a marital home valued at $74,000 that was encumbered by a $40,226 mortgage. They also owned an adjacent twenty-two acre lot valued at $22,000, and a small rental house worth approximately $10,000. Both individuals maintained pension and retirement funds. Wife's funds were valued at over $97,000 while Husband's funds were valued at approximately $50,000. Wife had an annual income of $50,000, compared to $32,000 for the Husband. The parties failed to reach an agreement concerning the division of the personalty. On December 4, 1996, the trial court entered judgment dissolving the marriage and dividing the marital property. This appeal followed.
Wife claims the trial court erred in granting Husband all of the real estate owned by the two parties, resulting in an unjust and inequitable division of the marital property.
The trial court is vested with considerable discretion in dividing marital property in a dissolution of marriage action. Anderson v. Anderson, 850 S.W.2d 404, 405 (Mo. App. 1993). The trial court's division of property is presumed correct, and the appealing party bears the burden of overcoming this presumption. Lenger v. Lenger, 939 S.W.2d 11, 14 (Mo. App. 1997). The decision of the trial court will not be disturbed on appeal absent a clear showing of an abuse of discretion. Klein v. Klein, 837 S.W.2d 567, 569 (Mo. App. 1992).
When dividing marital property, the trial court is not required to make an equal division of property but must make a fair and equitable division of the marital property in light of the circumstances attending the case. Dodson v. Dodson, 904 S.W.2d 3, 6 (Mo. App. 1995). The division of marital property need not be a 50-50 ratio to be equitable. Dove v. Dove, 773 S.W.2d 871, 873 (Mo. App. 1989).
The trial court awarded both homes, as well as the twenty-two acre tract of land to Husband. Husband also maintained control over his retirement/pension fund. All together, this totaled approximately $123,000. Wife was given none of the property, but she was allowed to control all of her $97,000 retirement/pension fund. This division gave Husband roughly 55% of the marital property, a difference of $26,000 over Wife's award. Justifying the award to the parties by a percentage of marital assets is not conclusive. Lenger, 939 S.W.2d at 14. The court will also consider the economic circumstances of each spouse at the time the division of property is to become effective. § 452.330.1, RSMo 1986; Dodson, 904 S.W.2d at 7. Significant in this instance is Wife's annual income of approximately $50,000, compared to $32,000 for husband. Attributing the income of a single year to each party, the difference between the assets awarded each party is less than one percent.
The trial testimony discloses that Wife had no desire to maintain the marital house or the adjacent twenty-two acre plot of land, given the poor condition of the property as well Wife's intention to completely sever ties with Husband. Also noteworthy was Wife's desire that each party maintain that person's own retirement/pension fund as opposed to dividing both funds evenly between the parties. Having argued to keep her entire pension/retirement fund, Wife's assertion that the distribution is inequitable due to the non-liquidity of her assets is not persuasive.
Given the economic interests of both parties, the trial court's allocation of marital property was not an abuse of its discretion.
The judgment is affirmed.