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August 29, 1983


From the Circuit Court of Jasper County Civil Appeal Judge Charles E. Teel, Jr.

Before Maus, P.j., Prewitt, Hogan, JJ.

The opinion of the court was delivered by: Hogan

This is a dissolution of marriage (divorce) case. As usual the only question is whether the trial court fairly and correctly apportioned the parties' marital property as required by former § 452.330, RSMo 1978. *fn1 The scope of our review is dictated by Murphy v. Carron, 536 S.W.2d 30, 32[1-3] (Mo. banc 1976).

The petitioner (Don) and respondent (Susan) were married February 14, 1975. Susan was then 23 years of age. Don, by our calculation, was 25. Susan had been married before and was the mother of a male child, Troy. She had, and has Troy in lawful custody under the provisions of her first decree of divorce. Troy is about 13 years of age at this writing. Don and Susan became parents of a female child, Ginger, now about 3 years of age. Susan has been awarded principal custody of the parties' daughter, and no issue as to child custody is presented. Nevertheless, it is to be borne in mind that Susan is a 31-year-old mother who has two children to rear.

The parties' marriage has been unhappy and unlucky. At the time they were married at Joplin, Don was attending a local college. Susan was also attending the college, "working at various parttime jobs." As we follow the record, the parties were separated after they married but were still living in Joplin. Don's version of the cause of their separation was that he "never had the right attitude toward marriage." Susan maintained they separated because Don was "selling marijuana it did not fit into my way of life."

In June 1976, Don decided to "start a new life." He and Susan moved to Casper, Wyoming. Both found employment. In May or June of 1977, Don's employer, a finance company, transferred him to Springfield, Missouri. Don quit his job in February or March of 1978; Susan thereupon became the sole wage earner. In June, Don found employment in Kansas. He and Susan moved to Lawrence, and Don commuted to his employment in Topeka.

At this time -- June of 1978 -- Don and Susan both owned motorcycles. While they were riding their motorcycles in Topeka, Susan was struck by a passing motorist. She sustained severe and permanent injuries. No technical medical proof was presented, but Susan described the injury thus: "I received a multiple broken left femur, I received a medulla oblongata which is supposedly, is a brain stem injury, I received cuts, bruises, brain damage and general injuries." She was hospitalized at the Kansas University Medical Center, where she remained "in a coma" for about a month. By the middle of August, she had recovered sufficiently to be transferred to a rehabilitation facility in Topeka. She remained there until September 12.

Susan's accident led the parties to claim damages for personal injury and in November 1978, they received the sum of $50,000 in settlement of their claim. After legal fees were deducted, they realized the sum of $37,800. Neither Don nor Susan could recall the exact amount, but it is clear from the record that most of the proceeds of this settlement went to purchase a house in Topeka. Don testified the Topeka property was worth $60,000, subject to an encumbrance in the amount of $22,182.68. For some time, Don and Susan lived in this house, but after they moved from Topeka they let the house for $460 per month. The monthly "payment" on the house is $321. The Kansas property is "jointly owned" and is one of the parties' principal assets.

The evidence was, from both parties, that after the Topeka house was purchased, they filed a joint petition in bankruptcy. We have no record of any discharge before us, but Don has personally assured the court that he and Susan were lawfully discharged. While we have some reservation about the time the petition was filed, the purpose of the proceeding is clear. As counsel put his affirmatively answered question to Susan, the bankruptcy proceeding "eliminated all bills associated with the accident and what other minor bills [the parties] had at that time." So much, then, for Kansas University Medical Center and "minor" creditors.

At some time after the accident, Don decided to leave his employer in Topeka because he "felt there was not a whole lot of room for advancement there . . . so decided to . . . sacrifice a little bit continue my education drawing the GI Bill . . ." The parties moved to Warrensburg where Don finished his studies and was awarded a B.S. degree in electronics.

While Don and Susan were living in Warrensburg, Susan applied for disability benefits pursuant to that part of Title II of the Social Security Act now codified as 42 U.S.C.A. § 423(c)(1)(A) and 42 U.S.C.A. § 402 (d)(2). As one would expect, she encountered administrative intransigence, but finally received an award of disability benefits in the amount of $950 per month. This entitlement is based on Susan's blindness and the dependency of her two children. See, generally 70 Am.Jur.2d, Social Security and Medicare § 58, § 59 (1973). Susan's award of benefits was delayed and when she finally received a check, $11,071 in "back benefits" had accrued. This amount was deposited in a joint savings account. Some part of the amount representing "back benefits" was used to purchase a house in Carl Junction where the parties lived at the time they finally separated. The purchase price of this house was "42 or 45" thousand dollars, according to Don. Susan's memory of the transaction was vague, but she believed that most of the "down payment" on this house came from her "back benefits." Don's typewritten estimates of value, received without objection, indicate the value of the Carl Junction property is $42,000, that it is subject to an encumbrance in the amount of $36,890 and the monthly installment payment on the mortgage is $448. Such, in capsule, is the nature of the case before us.

In this court, Susan's counsel has briefed one comprehensive point, the substance of which is that in view of the gross disparity between the parties' capacity to work and earn, the division of marital assets is unfair and inequitable. We must agree.

Other arguments have been suggested, or suggest themselves. We have doubt of Susan's ability to rear her children sinqle-handed, but, of course, no crowd of suitable alternative custodians stepped forward, and Don enthusiastically agreed to Susan's having custody. The trial court had little or no alternative. Don did invoke his privilege against self-incrimination, and he might have been refused affirmative relief as a sanction. See Geldback Transport, Inc. v. Delay, 443 S.W.2d 120, 121 (Mo. 1969). No sanction was invoked in the trial court, however, and we cannot convict a trial court of error never suggested to it. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982), appeal dismissed U.S. , 103 S.Ct. 711, 74 L.Ed.2d 942 (1983). The distribution of personalty may be unfair, but our only inquiry into the distribution of marital property is whether the division is so disproprotionate as to amount to an abuse of discretion or an erroneous application of the law. In re Marriage of Schulte, 546 S.W.2d 41, 47 (Mo. App. 1977). On the record presented, we can discern neither an abuse of discretion nor an erroneous application of the law in distributing the personalty, separate or marital. The distribution of realty is another matter.

In any realistic view of the facts, the parties have only two real assets, the house at Carl Junction and the house at Topeka. The trial court ordered the sale of the two parcels of property and further ordered that the proceeds be divided equally. In effect, the trial court has ordered a partition. We do not say, nor intend to hold by indirection, that such a Disposition exceeded the trial court's authority under former ยง 452.330. We are convinced that in ...

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