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September 3, 1993



Flanigan, Prewitt, Montgomery

The opinion of the court was delivered by: Flanigan

This action for dissolution of marriage was instituted in 1986 by Rose Marie Zimmer (Rose), against her husband James Francis Zimmer (James). The parties were married on January 21, 1971, when Rose was 19 and James was 22. A son Christopher was born in 1975, and a daughter Katherine was born in 1979. The parties separated in 1980 and, except for a two-week period in 1983, have continued to live apart.

In March 1989, Rose filed a separate action against Patricia League. In May 1989, the trial court consolidated the two cases. In February 1990, the trial court dismissed the action against Patricia. Rose's appeal from that dismissal will be dealt with later in this opinion.

No. 18517

The dissolution action was tried in July 1990, and Rose appealed from the judgment. In April 1992, this court dismissed that appeal because the judgment lacked finality. Zimmer v. Zimmer, 826 S.W.2d 904 (Mo.App. 1992).

In November 1992, in the dissolution action, the trial court entered a new judgment which, in addition to dissolving the marriage, contained the following provisions: (a) Rose was granted custody of the two children, and James was granted reasonable visitation rights; (b) certain property was classified as marital property and divided in a manner to be described; Rose was ordered to pay specified debts, and James was ordered to pay specified debts; (c) James was ordered to pay Rose monthly maintenance of $1,000, the maintenance to be non-modifiable but to terminate in June 1997 or upon Katherine's graduation from high school, whichever first occurs; maintenance was also to terminate on Rose's remarriage or the death of Rose or James; (d) James was ordered to pay monthly child support of $1,350 per child, and James was ordered to provide health insurance coverage for both children and to pay expenses incurred for surgery to be performed on Katherine's hand; (e) James was ordered to pay $12,500 toward Rose's attorney fees; (f) Rose was to pay one-half the costs and James was to pay the other half. Rose appeals and challenges provisions (b), (c), (d), (e), and (f).

The judgment of the trial court found, in addition to the facts set forth earlier, the following: Rose has a Master's Degree in nursing and is a licensed registered nurse; James is a medical doctor and practices radiology; both Rose and James have, for a number of years, conducted themselves as if they were unmarried; the children have no financial resources and would have enjoyed an above-average standard of living if the marriage had not been dissolved; Christopher has a minor learning disability and Katherine has a serious birth defect involving her right hand; in addition to being the children's primary caretaker, Rose has contributed to the family's income and support; "James, however, has supported the family in a comfortable manner since at least entering private practice in 1981"; James voluntarily furnished funds for the household expenses of Rose and the children until August 1986, and since that time has contributed to those expenses under court order; since 1981, James has contributed a net of over $40,000 per year for the support of Rose and the children; the application of the Child Support Guidelines established in Rule 88.01 would be inappropriate considering all the relevant factors, and the sum of $1,350 per month is an amount reasonable and necessary for the support of each minor child; the parties agree that there is no separate property to be set aside to either party; "while all of the assets have been acquired during the marriage, most have been acquired through James' substantial income and during the parties' separation"; Rose lacks sufficient property to provide for her needs and is the custodian of the two children, "which make it inappropriate at this time to seek full-time employment, and James has the ability to meet his needs while contributing to Rose's support."

Rose's first point is that the trial court made inadequate findings of fact in response to Rose's oral request. In the trial court, Rose offered 66 exhibits and James offered 19 exhibits. Many of those exhibits are voluminous. Rose's Exhibit 40, for example, consists of income tax returns beginning in 1973 and ending in 1984. Rose's exhibits constitute a stack two and one-half feet high. The trial court's findings made specific reference to several exhibits. Many of the deficiencies which Rose claims to exist in the trial court's findings may be due to the slipshod manner in which some of the evidence was offered. Rose's counsel called James as his first witness, a stroke which some may regard as good trial strategy, but one which created disorganization in the evidence.

The record is adequate for review of Rose's contentions, and all parties would be disserved by another remand. "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action." Rule 84.13(b). *fn1 This court's review of the record, in light of the trial court's findings and the vague and rambling content of Rose's oral request, shows no prejudicial error.

Rose's second point is, in general, that the trial court erred in dividing the marital property and in allocating the marital debts, resulting in a disproportionate share being awarded to Rose.

The trial court made the following distribution of marital property and allocation of debts:

Rose James

Share of Marital Property Share of Marital Property

Residence in Springfield Residence in Atlanta, Ga.

(1510 N. Washington $61,500.00 (100 Tinsley Mill Rd.) $500,000.00

Automobile 3,300.00 Household goods 300,000.00

Household goods and Sun Life ins. policy 24,000.00

professional equipment 8,000.00

Pension and profit-

Time share 0 sharing plan 137,396.00

$72,800.00 Shares in Zimmer

Radiology 500.00

Automobile 3,500.00

Note receivable 30,000.00


Debts Debts

Loan on residence $55,500.00 Unpaid judgment 3,565.14

Misc. unpaid accounts 9,743.74 Village II

Homeowners' Assoc. 4,055.24

Orthodontist Mayo Clinic 4,353.90

(bill on

Christopher) 2,320.00 Rochester Methodist

Hospital 2,665.03

Unpaid attorney's fee *fn2


City Federal Savings

$85,756.84 (Mortgage on residence) ...

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