Reeves v. Reeves , 904 S.W.2d 412 ( 1995 )

REINHARD, Presiding Judge.

Wife appeals from the marital property distribution provisions of a February 15,1994 decree of dissolution. We affirm.

Husband and wife were married on May 26, 1979. Three children were born of the marriage, B.W.R., bom March 25, 1980; L.R.R., bom September 30, 1981; Z.T.R., bom February 4, 1987. Both parties waived maintenance and agreed to other matters relating to child custody. The decree of dissolution placed primary physical custody of the children with wife. Husband was ordered, inter alia, to pay $840 per month in child support. The principal issue for determination by the court was the division of the marital property.

The parties had two houses; both were conceded by the parties to be marital property. One, at 2400 Hord Avenue in Jennings, Missouri, was purchased by the parties a few months before their marriage in 1979. It was the family home until husband and wife separated, and wife and children continued living there up to dissolution. Wife was a licensed beautician and had a beauty shop in the Jennings house. At the time of the hearing her income from the shop was $75 per month (this was in addition to what she earned at her full-time job). Upon separation, husband purchased the other house, at 10515 Durness in St. Louis. He continued to live in the St. Louis house until dissolution.

The Jennings house was the only one with significant equity. It and the pension from father’s electrical worker’s union constituted the marriage’s main assets. Wife valued the Jennings house at between $45-48,000 and husband at $60,000. The court found that neither party had separate property and divided and valued the marital property thus:

A. Marital Property

Awarded to Wife Value

1) 1980 Ford Van $ 1,500.00

2) 2400 Hord Ave., Jennings, MO $ 59,000.00

less home equity loan (10,000.00)

$ 51,500.00

8) Proceeds of personal injury claim $ 3,333.00

$ 52,333.00

4) Payment to be made from Husband to Wife $ 17,000.00

$ 70,883.0o¹

B. Marital Property

Awarded to Husband

1) 1989 Ford F150 $ 6,000.00

2) 10515 Durness, St. Louis, MO negligible

3) IBEW Pension $ 81,000.00

$ 87,000.00

4) Payment to be made from Husband to Wife (17,000.00)

$ 70,000.00

The $17,000 cash award to wife from husband was, according to the court, “an additional share of marital property.” This was in furtherance of the court’s intention “to set off the marital property into approximately equal shares.” The $17,000 cash award was due within 240 days of the effective date of the decree, “plus interest at nine percent (9%) after the date due if not paid.”

On appeal, wife asserts:

The trial court erred in awarding wife a cash judgment of $17,000 as part of the property award in that said award was an abuse of discretion and created an inequitable distribution of the marital estate because said award was unsecured, subject to discharge in bankruptcy, and virtually un-collectible through execution resulting in husband receiving an unequal share of the marital estate.

The trial court is vested with considerable discretion in dividing marital property and an appellate court will only interfere if the division is so heavily weighted in favor of one party as to amount to an abuse of discretion. Allen v. Allen, 770 S.W.2d 529, 530 (Mo.App.1989). The court is unfettered by rigid methods or mechanics. Calia v. Calia, 624 S.W.2d 870, 872 (Mo.App.1981). It is well-settled that a court can order cash awards to effect a just division of marital property. Allen, 770 S.W.2d at 530. This device is employed when it is impossible or imprudent to divide property in kind. Calia, 624 S.W.2d at 872.

Wife makes no claim that an equal disposition of property would be unfair or inequitable nor does she challenge the court’s valuation of the marital property. There was no evidence of marital misconduct on the part of either party. The court felt, properly in our opinion, the division should be relatively equal. Mother’s argument is that the court should have ordered a sale of the Jennings house and equally divided the sale’s proceeds and equally divided husband’s pension.

The pension and the Jennings house are the only two marital assets that have substantial value. Neither party wanted the Jennings house. Wife had lived in the marital home for fifteen years and that home remained hers and the children’s residence after separation.² She had a beauty shop in that house from which she derived extra income. There is no evidence as to when the pension plan vested or when its benefits could be received. From the ages of the parties, it may be many years before wife could receive any benefits from the pension if the court had awarded her an interest in it.

The trial court’s method of equally distributing the marital property was not the only one available to it. It was, however, a feasible one in this case of limited marital assets. We conclude that the court’s order setting off the pension plan to husband, the Jennings home to wife, and ordering equalization between the value of property awarded with a cash judgment was not an abuse of the court’s broad discretion.

Wife’s contention that the cash award may be uncollectible is speculation. She relies on Schneider v. Schneider, 761 S.W.2d 760 (Mo.App.1988), to support her assertion that any cash award should have been secured by a lien. Schneider concerned an appeal where, unlike here, the wife contended the proportion of marital property awarded her was too small. The husband was awarded property with a value of approximately $45,000. The wife was awarded actual marital property with a value of only $3,100, but the husband was ordered to pay the wife’s student loan in the amount of $22,000. We found that this distribution was not unfair. Without a request, we then stated:

The decree provides wife with no security in the event husband fails to meet the obligations of the loan. The loan remains her obligation as between her and the lender. Elimination of this debt is the major item which she has received from this dissolution and the decree requiring payment by husband is an indirect award of marital property to her. She is entitled to security for this obligation.

Id. at 761 (emphasis added). The case was remanded to the trial court to amend the decree to provide security, “[presumably through a lien on the McCausland property (the marital home)” which had been awarded to the husband. Id.

In this case, as wife notes, there was no property after the court’s disposition on which a lien could be imposed. Moreover, in Schneider, the unsecured obligation of husband (the “major item” awarded wife) constituted approximately eighty-six percent of wife’s distribution; the unsecured cash award in the instant case is approximately twenty-four percent. Schneider does not support a reversal of this award with a new order of distribution and wife has cited no cases (nor has our research found any) which would support such action.

The general rule is that a court “may secure the performance of an act or the future payment of money, lawfully ordered in the disposition of marital property, by the imposition of a lien upon marital property distributed to a spouse.” Costley v. Costley, 717 S.W.2d 540, 544 (Mo.App.1986) (emphasis added). However, “[i]t is also permissible to order a cash transfer without linking it to any particular asset.” Calia, 624 S.W.2d at 872.³

We find no abuse of the court’s discretion and affirm the court’s judgment.

GARY M. GAERTNER, J., concurs. CRAHAN, J., dissents in separate opinion.

1 . The trial court made a computational error and entered a total of $69,333.00 for wife's total.

2 . The trial court stated it was guided in its division of marital property by, inter alia, the "custodial arrangements for the minor children.” It is a reasonable inference that the trial court sought to have the children remain in the family home. See § 452.330(5), RSMo 1994. There was no indication in the record that the St. Louis house was suitable for this purpose.

3 . Wife points to cases (she calls them the “overwhelming majority”) where the courts have provided security interests in identifiable property for cash awards. She cites Allen, supra; In re Marriage of Pine, 625 S.W.2d 942, 946 (Mo.App.1981) (lien ordered by appellate court on remand after property distribution reversed); Jamison v. Jamison, 828 S.W.2d 377 (Mo.App.1992); and Schneider, supra. However, we note just a few other cases where no security was apparently provided. See, e.g., In re Marriage of Pehle, 622 S.W.2d 711, 713 (Mo.App.1981); Fort v. Fort, 670 S.W.2d 173, 175 (Mo.App.1984) (husband awarded pension plan worth $10,500 and wife awarded $5,000 over five annual installments); Scott v. Scott, 645 S.W.2d 193, 195 (Mo.App. 1982); Ploch v. Ploch, 635 S.W.2d 70 (Mo.App.1982); Beckman v. Beckman, 545 S.W.2d 300 (Mo.App.1976). In none of the above cited cases, except Pehle, was the issue of security a basis of the appellate court’s decision or apparently even broached by the parties.

In Pehle, supra, the wife argued that the court erred in decreeing that a $45,000 cash award (payable over 120 months) was not to be a hen on husband’s property. Pehle, 622 S.W.2d at 713. She based her argument on § 452.080, RSMo 1978, which provided that alimony in gross shall be a lien on the debtor's real estate. We noted that her argument had a "faulty premise” because the award was not alimony in gross, but rather, a division of marital property. Pehle, 622 S.W.2d at 713. We found her contention to be without merit. Id.; see also Rickard v. Rickard, 428 S.W.2d 919, 929 (Mo.App.1968). We view the above compilation of cases as a demonstration of a trial court’s discretion in distributing marital property and again note that the trial court is unfettered by rigid methods or mechanics.