text:
    Josefina ALTAMIRANO, Appellant, v. Jose Florentino ALTAMIRANO, Appellee.
    No. 1563.
    Court of Civil Appeals of Texas, Corpus Christi.
    Nov. 29, 1979.
    Robert L. Joseph, Sinton, for appellant.
    James M. Whitten, Sinton, for appellee.
   OPINION

NYE, Chief Justice.

This is a child custody case which arose out of a divorce action originally brought by the father, Jose Florentino Altamirano, petitioner, against his wife, Josefina Altami-rano, respondent. After a non-jury trial, the trial judge granted the divorce and named the father managing conservator of their two young children, a boy, Jose Flo-rentino Altamirano, Jr., born October 17, 1977, and a girl, Lori Altamirano, born September 29, 1978. Josefina Altamirano appeals from that portion of the divorce decree. naming the father managing conservator of the children.

The parties were married in early 1977, and separated the following November, approximately one month after the birth of Jose, Jr. After the original divorce petition was filed on December 1, 1977, the trial judge entered temporary orders requiring the parties to seek marital counseling and naming the mother temporary managing conservator during the pendency of the proceeding. The parties’ second child, Lori, was born approximately ten months after the original divorce petition was filed. At the divorce hearing, each parent sought to be named managing conservator of the children. After hearing the testimony of the parties and receiving into evidence a “social study,” (which reported the results of a social worker’s investigation into the circumstances and conditions of the children and of the home environments of the respective parties), the trial judge entered a decree of divorce naming the father managing conservator of the children and naming the mother possessory conservator of the children with specified visitation privileges. No findings of fact or conclusions of law were requested or filed.

In her first two points of error, appellant attacks the trial court’s managing conservatorship designation on legal and factual sufficiency grounds. Where, as here, no findings of fact were requested or filed, the appellate court must affirm the trial court’s judgment if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.Sup.1968). In such a case, all fact findings raised by the evidence which are necessary to support the judgment are implied in favor of the trial court’s judgment. In determining whether there is any evidence to support the judgment, the appellate court must consider only that evidence that is most favorable to the issue, disregarding all contrary evidence thereto. Renfro Drug Co. v. Lewis, 235 S.W.2d 609 (Tex.Sup.1950); In Re King’s Estate, 244 S.W.2d 660 (Tex.Sup.1951).

Section 14.01 of the Texas Family Code expressly provides that in determining which parent to appoint as managing conservator, the court shall consider the qualifications of the respective parents without regard to the sex of the parent. Tex.Fam. Code Ann. § 14.01 (1972). This section “is to put both parents on an otherwise equal plane in a child custody case, and thus remove a preference for the mother.” Adams v. Adams, 519 S.W.2d 502 (Tex.Civ.App.—El Paso 1975, no writ). See Tye v. Tye, 532 S.W.2d 124, 127 (Tex.Civ.App.—Corpus Christi 1975, no writ). In determining the question of managing conservatorship, the welfare and best interest of the children shall always be paramount and the primary consideration of the court. Tex.Fam.Code Ann. § 14.07 (1972), provides in part:

“(a) The best interest of the child shall always be the primary consideration of the court in determining questions of managing conservatorship, possession, and support of and access to the child.
(b) In determining the best interest of the child, the court shall consider the circumstances of the parents.”

We have carefully reviewed all of the evidence presented in this case and find . that there is ample evidence to support the trial court’s action in naming the father managing conservator of the children. Appellant’s points of error one and two are overruled.

Actually, the evidence in this case would support the appointment of either parent as managing conservator. In summary, there is evidence that each parent loves the children and would provide adequate care for them. They are both good people. The social study recommended that the children remain with their mother only because they were living with her at the time of the divorce. In the investigator’s opinion, to remove them to the father’s home after the divorce would not provide such additional benefits as would warrant disrupting their present living patterns. On the other hand, there is evidence in the record from which the trial judge could have reasonably concluded that the children would be placed in an even more stable family environment if the father were named managing conservator. The father had a steady job and had completed an automotive mechanics’ course. In addition, he could offer the children a family environment and the assistance of his aunt and uncle, who had raised him, and with whom he lived. The mother, by contrast, was uneducated and totally unskilled. The family support and environment that she had to offer were not as stable as the father’s.

The matter of determining who should be appointed managing conservator of Jose Florentino Altamirano, Jr. and Lori Altamirano was addressed to the sound discretion of the trial judge as the trier of fact. The trial judge is in a better position than the appellate court to determine what will be in the best interests of the children since the trial judge faces the parties and their witnesses, observes their demeanor, and has the opportunity to evaluate the claims made by each of them. In determining what is best for the minor children in a custody proceeding, the trial court’s judgment will not be disturbed by an appellate court unless there has been a clear abuse of discretion. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963); Wilkinson v. Evans, 515 S.W.2d 734 (Tex.Civ.App.—Dallas 1974, n. r. e.); Tye v. Tye, 532 S.W.2d 124 (Tex.Civ.App.—Corpus Christi 1975, no writ).

Under the record before us, we cannot say that the trial judge abused its discretion in appointing the father managing conservator of the children. See Fergus v. Fergus, 547 S.W.2d 51 (Tex.Civ.App.—Eastland 1977, no writ); Johnson v. Johnson, 536 S.W.2d 620 (Tex.Civ.App.—Tyler 1976, no writ); Tye v. Tye, 532 S.W.2d 124 (Tex.Civ.App.—Corpus Christi 1975, no writ); Adams v. Adams, 519 S.W.2d 502 (Tex.Civ. App.—El Paso 1975, no writ). Appellant’s points of error three and four are overruled.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: SUMMERS, Chief Justice.

license: Public Domain

text:
    ESTATE of Floyd SELF, Deceased.
    No. 1274.
    Court of Civil Appeals of Texas, Tyler.
    Nov. 29, 1979.
    Larry R. Daves, Daves, McCabe & Crews, Tyler, John D. Byers, Sulphur Springs, for appellant.
    W. T. Allison, II, Sulphur Springs, for appellee.
   SUMMERS, Chief Justice.

This is an appeal from an order of the trial court denying the application of L. T. Self, appellant, to probate an instrument in writing, dated October 26, 1950, as the will of Floyd Self, deceased.

Floyd Self died July 26, 1977, while a resident of Hopkins County, Texas. Kenny Wayne Self, appellee, the sole surviving son of the deceased, was appointed Temporary Administrator of the Estate of Floyd Self on August 1, 1977, by the County Court of Hopkins County, and then was appointed Permanent Administrator of said estate by said County Court. After Kenny Wayne Self qualified to serve as such administrator, L. T. Self and James Randle Self (brothers of the deceased), appellants herein, filed an application to determine heir-ship, and the cause was removed to the 62nd District Court of Hopkins County. In a summary judgment dated November 1, 1977, the District Court determined and decreed that Kenny Wayne Self was the only heir of Floyd Self, deceased, that he was entitled to receive the assets of said estate, and as such heir was the proper person to continue as Administrator of the Estate of Floyd Self, deceased. Although an appeal bond and notice of appeal was given, L. T. Self and James Randle Self failed to pursue an appeal of the trial court’s summary judgment.

Thereafter, on December 8, 1977, L. T. Self, appellant, filed an application herein to probate the instrument, dated October 26, 1950, offered herein as the will of the said Floyd Self, deceased. This instrument was an executed copy of a will found in the possession of Neil McKay, County Court at Law Judge of Harris County, Texas, who formerly practiced law in Hopkins County. Appellee contested this probate, and the. entire cause was transferred to the'62nd District Court of Hopkins County for determination.

Trial was had before the court without a jury. By its judgment of September 11, 1978, the trial court denied the appellant’s application to probate said instrument, dated October 26, 1950, as the will of Floyd Self, deceased; decreed that all contested matters were resolved, confirmed and ratified the court’s summary judgment of November 1,1977, in which Kenny Wayne Self was determined to be the sole heir of Floyd Self, deceased, ordering that he continue as administrator and close the estate as provided by law; and transferring the cause back to the County Court of Hopkins County for action in accordance with this judgment.

It is from this judgment that appellants appeal.

We affirm.

In said judgment the court made and states the following findings of fact and conclusions of law:

(1) That the application to probate the will of Floyd Self, deceased, dated October 26, 1950, should be in all things denied because the proof required for probate was not made to the satisfaction of the court;
(2) That the evidence failed to establish that such purported will was not revoked by the testator;
(3) That by this court’s summary judgment order of November 1, 1977, the court found and decreed and now finds and decrees that the two beneficiaries, Marion James Self and David Paul Self, died without issue before the death of their father, Floyd Self, on July 26, 1977, and that Floyd Self died intestate on July 26, 1977, survived by his only son and heir, Kenny Wayne Self;
(4) That the purported will of October 26, 1950, has lapsed, and that the two beneficiaries, Marion James Self and David Paul Self, died without issue prior to the death of Floyd Self, deceased, and that the purported will dated October 26, 1950, contains no clause disposing of the residue of the estate of Floyd Self, deceased, which is sufficient to disinherit Kenny Wayne Self;
(5) That L. T. Self is not entitled to letters testamentary and is disqualified and unsuitable to act;
(6) That Kenny Wayne Self is a suitable person to be and to continue to be administrator, that he is not disqualified, that as such administrator he has performed all the acts of administration, that all debts and inheritance taxes have been paid, and there is no necessity for continuing said administration.

Appellants predicate this appeal upon one point of error, as follows: That the trial court erred in holding that the will did not disinherit appellee.

The general rule is that it is not the province of the court to construe a will in a proceeding for its probate. If proof required by the applicable statutory provision is made, the will should be admitted to probate, ieaving for determination in a separate and independent action questions as to what property is affected by the will and what disposition shall be made of the property. Langehenning v. Hohmann, 139 Tex. 452, 163 S.W.2d 402, 405 (1942, opinion adopted); Robinson v. Compton, 313 S.W.2d 550, 552 (Tex.Civ.App.—Eastland 1958, no writ).

We do not believe that a construction of the purported will to determine if it disinherits appellee, as raised in appellants’ single point of error, is a matter to be considered in determining whether the instrument offered should be admitted to probate. The statutory proof required for probate and issuance of letters testamentary is set forth in Section 88 of the Texas Probate Code.

However, if the matter raised in such point of error is properly before this court, then we agree with the trial court that the instrument offered for probate was ineffective to disinherit appellee, Kenny Wayne Self. The purported will left everything to appellee’s two brothers, Marion James Self and David Paul Self, who died without issue prior to the death of their father, Floyd Self. There was no residuary clause. A lapsed testamentary gift will pass by intestate succession unless the will contains a general residuary clause or provides for a substitute devisee or legatee. Bittner v. Bittner, 45 S.W.2d 148, 152 (Tex. Comm'n App.1932, judm’t adopted).

In order to disinherit an heir, a testator must effectively dispose of his property to another under the provisions of his will. As stated by the Supreme Court in the early case of Philleo v. Holliday, 24 Tex. 38 (Tex.Sup.1859):

“. . The right of the heir is defeated only by a substitution of some person to take in, his place, and not by a declaration, or express intention, that he shall not take. Hence, though the heir is expressly disinherited, as if a man by his will should declare that his heirs or next of kin shall have no part of his estate, and not direct who shall have it, still the heir would take, not under the will, but under the law; for there must be in the will a devisee, to supplant the heir . . ” (Emphasis added).

If the testator fails to make an effective disposition of his property to another (as in this case), the property will pass to his heirs at law under the laws of descent and distribution even though this might be against the testator’s intention, however, plainly manifested. Najvar v. Vasek, 564 S.W.2d 202, 207 (Tex.Civ.App.—Corpus Christi 1978, no writ); Poole et al. v. Starke, 324 S.W.2d 234 (Tex.Civ.App.—Fort Worth 1959, writ ref’d n. r. e.); Adams v. Master-son, 415 S.W.2d 535, 536 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.). Appellants’ point of error is overruled.

Since the findings of fact set forth specifically by the court in its judgment have not been challenged by any assignment of error, they stand as proven facts in this case. Accordingly this court has no jurisdiction to go behind these findings and must accept them as supported by the evidence. Lovejoy v. Lillie, 569 S.W.2d 501, 504 (Tex.Civ.App.—Tyler 1978, writ ref’d n. r. e.); Bilek v. Tupa, 549 S.W.2d 217, 220 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); Texas State Board of Pharmacy v. Gibson’s Discount Center, Inc., 541 S.W.2d 884, 886 (Tex.Civ.App.—Austin 1976, writ ref’d n. r. e.); City of Sulphur Springs v. Steed, 562 S.W.2d 906, 909 (Tex.Civ.App.—Tyler 1978, no writ); McKenzie v. Carte, 385 S.W.2d 520, 530 (Tex.Civ.App. —Corpus Christi 1964, writ ref’d n. r. e.); Waters v. King, 353 S.W.2d 326, 328 (Tex.Civ.App.—Dallas 1961, no writ).

The judgment of the trial court is affirmed.


author: STEPHENSON, Justice.

text:
    Glenville Franklin CLARK, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Oct. 30, 1979.
    Jack Emory Farley, Public Advocate, Kevin Michael McNally, Asst. Public Advocate, Commonwealth of Kentucky, Frankfort, for appellant. •
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-
   STEPHENSON, Justice.

Glenville Franklin Clark was tried and convicted of the murder of Henry Sweatt. He was sentenced to 20 years’ confinement in the penitentiary. We affirm.

Prior to trial, defense counsel filed a notice of insanity defense and requested a psychiatric examination pursuant to KRS 504.050(2). The affidavit filed in support of the request for a psychiatric examination to determine competency to stand trial stated in part “the affiant doubts the present fitness of this defendant to proceed or to participate in his own defense.” The trial court ordered a psychiatric examination by Dr. Warren. A report was filed with the trial court by the doctor. The report found Clark competent to stand trial and suggested some personality disorders. The defense of insanity was abandoned during the course of the trial.

Clark argues that the trial court committed reversible error in not conducting a competency hearing. The basis of Clark’s argument is that KRS 504.040(4), enacted in 1978, mandates a hearing, and failure to conduct such a hearing is reversible error.

KRS 504.040(4) reads: “After the defendant is examined and the report is filed, the court shall order an evidentiary hearing on the issue of defendant’s competency to stand trial.”

It was error for the trial court to disregard the mandatory direction of the statute; however, we are of the opinion that in the circumstances of this case the error was harmless beyond a reasonable doubt. Here the doctor who conducted the examination and submitted the report to the trial court testified at the trial. He testified that in his opinion Clark acted under extreme emotional disturbance at the time of the offense, that he could not form an opinion as to sanity at the time of the offense, and that Clark suffered a personality disorder or mental disorder, but wás not psychotic. The only inference to draw from Dr. Warren’s entire testimony is that Clark was competent to stand trial and that there was no suggestion by anyone that he was not, including the factor that no hearing was requested. We are not advised as to any prejudice to Clark other than the formal failure to follow the statute. In these circumstances it would exalt form over substance to reverse for a new trial for failure to conduct a hearing. That is not to say that wé will not enforce the mandatory provisions of the statute in other circumstances. The General Assembly has directed the procedure, and it should be followed by the trial courts. We realize, from our experience in reviewing this question before, that rarely can unfair prejudice be shown. However, the statute must be complied with; and if this requires reversing cases to accomplish the mandate of the statute, it will be done.

Clark asserts that the Commonwealth failed to prove Clark was not acting under extreme emotional disturbance and that he was entitled to a directed verdict to the charge of murder. This argument rests primarily on the testimony of Dr. Warren, who testified that in his opinion Clark was acting under extreme emotional disturbance at the time of the killing. While the Commonwealth did not address this issue specifically, we are of the opinion from the record that the Commonwealth met the burden of persuasion here and that the issue was for the jury.

The other issues asserted by Clark do not merit discussion.

The judgment is affirmed.


author: STERNBERG, Justice.

text:
    Cisco NEELEY, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    Nov. 20, 1979.

      Lowell E. Spencer, Paintsville, for mov-ant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for respondent.
   STERNBERG, Justice.

On May 4, 1977, the Grand Jury of Floyd County, Kentucky, returned an indictment against movant charging him with the offense of manslaughter in the second degree, a Class C felony (KRS 507.040). A jury found movant guilty as charged and fixed his punishment at imprisonment for a period of eight years. The Court of Appeals of Kentucky affirmed the trial court insofar as movant’s having been proven guilty; however, it reversed the trial court on the length of the sentence which was imposed. On May 15, 1979, this court granted review.

On February 2, 1977, at about 8:00 p. m., an automobile being operated by Mrs. Lo-letta Howard had a head-on collision with one being operated by movant. Both drivers sustained multiple injuries; movant recovered, Mrs. Howard did not. Four witnesses for the Commonwealth testified that movant was driving his car at a highly excessive rate of speed and was on the wrong side of the highway at the time of the collision. Witnesses for the movant, on the other hand, testified that he was not speeding and that the collision was caused by the Howard car being operated on the wrong side of the highway. The Commonwealth took the deposition of Dr. Byron Young, who testified that at the time of the collision Mrs. Howard was pregnant and thereafter lost her baby. Over the objection of counsel for movant, the trial judge permitted the testimony of the doctor as to the single fact of pregnancy to be considered by the jury; however, the court did not let the doctor’s testimony as to the loss of the baby be considered by the jury. On motion of movant’s counsel, the court admonished the jury not to consider the question about the loss of the baby nor to consider the answer thereto. No relief other than an admonition was sought. This, he received.

There was a sharp issue drawn as to the cause of the collision. The physical strength of the parties to avoid the collision would be admissible to show the capacity to respond in an emergency. The absence of a foot, a leg, a hand, or an arm could properly be shown where the absence of such would affect a person’s ability to so act. Corporal appearance and condition as indications of inward health or lack of it are relevant. The physical strength of a person may be of probative value to show that he was capable or incapable of acting. Mrs. Howard’s pregnancy may well have affected her ability to avoid the collision. Although evidence of the physical condition of Mrs. Howard would be competent if it would be tied into the causation of the collision, the fact is that it was not. The testimony in this case relating to pregnancy, not having been tied into the causation of the collision, constituted error. The bifurcated proceeding ordered by the Court of Appeals is predicated on that court’s assumption that the error manifested itself only in the area of sentencing. This court having read and considered the whole record is not so persuaded. The error is of such proportions that the jury could have been prejudiced either in the consideration of movant’s guilt or in the length of . the sentence or both. We are not willing to second guess the jury. It should be permitted to consider the question of guilt and the length of the sentence at the same time.

Shortly after the collision Patrolman Denny Stumbo, of the Kentucky State Police, arrived on the scene and commenced his investigation. He found both of the cars substantially on the same side of the road. The Howard car was partially in the ditch and partially on the highway. The Neeley car was astride the center line of the highway, splitting the car down the center. The copy of the patrolman’s accident report depicted the positions of the cars and was admitted into evidence without objection. Trooper Stumbo also offered a copy of a Kentucky Department of Highways map, with markings made by the witness, which depicted the location of the fixed objects. Counsel for movant objected to the use of this map, charging that it was inaccurate and would only confuse the jury. In this day and time we have found that jurors are not easily confused. We have examined the map and find that it sets out the location of the descriptive objects with particularity, and from the measurements made by the witness, the map adequately locates the descriptive objects. Its clarity or confusing effect was for the jury. The trial court did not err in admitting this map into evidence.

Jackie Lynn Howard, who was the husband of the deceased, was called to testify as a witness for the Commonwealth. Counsel for movant charges that the calling of this witness was to arouse sympathy, prejudice and the emotion of the jury. A spouse as such is not to be treated any differently than any other witness. We have read the testimony of this witness, considered the substance of his testimony, •and find the alleged error to be without merit.

Further, movant claims prejudice because Trooper Stumbo, after having been interrogated at length, was asked by the Commonwealth’s Attorney if there was anything else about the case or about the collision that he thought the court and the jury should know but had not been told. Counsel for movant objected to the nature of the question. The court overruled the objection and permitted the witness to answer. He answered that the only other thing that he could think of was that mov-ant’s car was on the wrong side of the road. Movant’s counsel asked the trial court to admonish the jury. The court sustained this objection and did admonish the jury not to consider the answer. Thus, movant received all that he sought. He cannot now seek more.

Counsel for movant further complains that Trooper Stumbo was asked and permitted to answer as to whether movant had been drinking. His response was, “Yes, sir, there was the smell of alcoholic beverages on his person.” The trial court overruled an objection and motion to strike. Movant was indicted for manslaughter in the second degree, which requires that he wantonly caused the death of Mrs. Howard. Wanton conduct includes the element of voluntary intoxication. Movant himself testified in response to a question from his own attorney that on the occasion he was not drinking, but had a full case of beer on the back seat of his car. He also stated that some of the beer broke. One of movant’s witnesses testified, in response to a question by counsel for movant, that movant had not drunk any beer on the occasion. The trial court did not err in permitting this evidence to go to the jury.

The decision of the Court of Appeals is affirmed in part and reversed in part. The cause is remanded to the Floyd Circuit Court for a new trial.

All concur.


author: CLAYTON, Justice.

text:
    Deborah May TAYLOR, Movant, v. Dwight Chick TAYLOR, Respondent.
    Supreme Court of Kentucky.
    Dec. 18, 1979.

      Neil A. Banks, Louisville, for movant.
    Joseph V. Mobley, Louisville, for respondent.
   CLAYTON, Justice.

The movant, Deborah Taylor, received custody of her son John when she was divorced from respondent, Dwight Taylor. Shortly thereafter, Deborah suffered a severe financial setback when her personal belongings were destroyed in a tornado. Because of her dire predicament, Deborah initiated negotiations with her ex-husband in order to change the custody arrangement. An “Agreed Order of Custody” transferring custody of John from Deborah to Dwight was entered by the Jefferson Circuit Court. Although the amended order did not state that the arrangement was to be temporary, the movant testified at trial that she relied on respondent’s verbal representations.

Once Deborah’s domestic situation was stable she requested that Dwight, who had by then remarried, return John to her custody as they had agreed. Dwight refused and Deborah instituted legal proceedings to regain custody of her son.

After a trial, an order was entered by the circuit court transferring custody of the child back to Deborah. Dwight appealed to the Court of Appeals who reversed in his favor. Deborah appealed to this court and we now reverse the Court of Appeals.

Rule 52.01 of the Kentucky Rules of Civil Procedure states, in part, that “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” This rule is designed to prohibit an appellate or reviewing court from substituting its opinion for that of the trial court — and thus becoming a trier of fact — unless the findings of the trial court are clearly erroneous. While there may be inconsistent and conflicting testimony given at a trial, the judge or jury, as the case may be, has the obvious advantage of observing the physical and emotional demeanor of those testifying, thus allowing them to better evaluate the credibility to be afforded each witness.

The reviewing court’s basic concern is whether there is sufficient evidence, as detailed by the record, to support the decision of the trial court. If so, then the trial court’s decision is not clearly erroneous.

We find that the record does support the decision of the trial judge to transfer custody of John Taylor to Deborah Taylor and that the judge did not abuse his discretion in determining that it was in the best interest of the child to live with his mother.

The decision of the Court of Appeals is reversed and the judgment of the Jefferson Circuit Court is affirmed.

PALMORE, C. J., and AKER, CLAYTON, LUKOWSKY, STEPHENSON and STERNBERG, JJ., sitting.

All concur.


author: CLARK, Judge.

text:
    Harold M. HULL, Appellant-Respondent, v. Mary J. HULL, Respondent-Appellant.
    No. KCD 30191.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Theodore M. Kranitz, St. Joseph, for appellant-respondent.
    Lee M. Nation, Kansas City, for respondent-appellant.
    Before DIXON, P. J., and TURNAGE and CLARK, JJ.
   CLARK, Judge.

Petitioner husband, Harold M. Hull, commenced an action to dissolve his marriage to Mary J. Hull and for orders respecting maintenance and for division of marital property. As the issues were joined, irretrievable breakdown of the marriage was not contested but maintenance and property matters were the subjects of extensive evidence and dispute. From the judgment ultimately rendered, the husband appeals the award of maintenance to the wife and takes issue with the failure of the court to apportion income tax liability in respect to 1977 earnings. The wife appeals the adjudication of nonmarital property made incident to the division of marital property.

The parties were married in 1941 and separated in 1976. Children born of the marriage are chronologically and financially emancipated. The husband was a practicing attorney in Maryville for 29 years prior to January 1, 1977, when he became magistrate judge (now associate circuit judge) for Nodaway County. The wife has a college degree in primary education, an L.P.N. degree and has taken courses in pharmacology. With the exception of part-time work intermittently obtained, the wife has worked as a homemaker during the marriage and has had no employment since the separation.

Assets of the parties acquired during the marriage consisted of substantial real esr tate holdings titled in the husband’s name and real estate and personal property jointly held. The judgment entry contains no recitation of property values, but a prior memorandum filed by the court does set forth the court’s findings on these subjects.

A farm tract of approximately 320 acres valued at $316,000.00 and a small tract of approximately fifteen acres valued at $28,-500.00 were titled in the husband’s name alone and were found by the court to be nonmarital property because acquired by the husband as gifts. Both were set off in the decree to the husband as his separate property. No separate property was assigned to the wife who was found to have no interest in nonmarital property. Exception is taken by the wife to the court’s decision allotting the larger farm tract to the husband and its exclusion from division between the parties as marital property.

Marital assets included automobiles, furniture, antiques and miscellaneous personal possessions to which the memorandum did not assign individual values and the division of which is not presently in controversy. Additional marital assets which do bear on disputed issues were the family residence valued at $50,000.00, a rental, house and a 3V2-acre lot valued at $18,000.00 and cash and securities of the total value of $239,-777.00.

In the division of marital assets, the wife was awarded the rental house and lot and $182,000.00 in cash. The husband was given the family home and the remaining cash and securities amounting to $57,777.00. The wife was awarded $500.00 a month as maintenance. Exception is taken by the husband to the maintenance award on the ground that it was unjustified in view of the substantial value of the marital property she received.

Initially, the issue, raised in argument, that the wife has waived or is estopped to appeal the division and award of marital property must be addressed.

Trial of this case was completed on March 30,1978, on which date the court announced from the bench that dissolution of the marriage was decreed. Issues of maintenance and property division were taken under advisement. Thereafter, for reasons not apparent in this record, the court filed a memorandum noted above and dated April 7, 1978. While the memorandum did include a recitation of findings and referred to awards of property, no decretal language was used and the formal components of a judgment are absent. No indication of a signature to the memorandum appears in the transcript and the parties on oral argument were in agreement that the judge did not sign the memorandum.

The husband, apparently entertaining doubt as to the effect of the memorandum, filed a notice of appeal on April 10, 1978, but on May 1, 1978, he paid into the registry of the court $140,000.00 in partial satisfaction of the marital property distribution to the wife and $500.00 as the first installment of maintenance. On the order of the court concurrently made, these sums were paid to the wife by the circuit clerk.

An exchange of correspondence among the attorneys and the court followed the April 7, 1978 memorandum. The form and content of a judgment entry was debated and drafts of proposed entries were circulated indicating that the memorandum was, at most, a tentative statement of findings the court expected to announce. Actual entry of judgment was on May 10, 1978,- and was at some variance from the memorandum, particularly as to apportionment of 1977 income tax liability. The record includes no reference to any payments made to the wife subsequent to the formal entry of the judgment.

As a general rule, a litigant who voluntarily accepts the benefits of a judg-. ment cannot afterwards prosecute an appeal to reverse it. Fear v. Ebony Paint Manufacturing Co., 238 Mo.App. 560, 181 S.W.2d 559 (1944); Waddingham v. Waddingham, 27 Mo.App. 596 (1887). The right to enjoy the fruits of a judgment and the right to attack it on appeal are inconsistent and an election to pursue one course is an abandonment of the other. Knebel v. Knebel, 189 S.W.2d 464 (Mo.App.1945).

In the subject case, the wife’s appeal of the judgment dividing marital property includes the risk of a less favorable result as well as the prospect that her share of assets available for distribution will be increased. Were it not for the unusual sequence of entries by which partial benefits under the ultimate judgment were distributed to the wife, the authorities noted above could well operate to deny the wife concurrent opportunity to challenge the judgment and also enjoy its benefits. Here, however, the rule of estoppel or waiver is inapplicable, first, because the payment was voluntarily made by the husband without intercession by the wife either to require the payment or obtain its distribution and, second, because the payment actually preceded by some ten days the entry of judgment in the case. The question of why the husband tendered partial advance distribution of marital property is unanswered but immaterial. The wife’s appeal is not barred in this record by application of doctrines of waiver or estoppel.

Next to be examined is the wife’s contention that the trial court erred in declaring the farm to be the separate property of the husband with the consequence that this substantial asset was not subject to division as marital property under Section 452.330, RSMo 1978. As the decision on this question depended on whether the farm was acquired by gift or as compensation for legal services, we review the facts to ascertain if the result reached by the trial court is supported by substantial evidence and is not against the weight of the evidence. Willimetz v. Willimetz, 564 S.W.2d 631 (Mo.App.1978); Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976).

The subject farm was acquired by conveyance from a client. Some months before the deed was made, the client had retained the services of the husband for defense of major criminal charges and had paid in advance, an agreed fee of $2,500.00. For reasons immaterial here, the client subsequently entered a plea of guilty in the criminal case and, in the judicial and procedural climate which then prevailed some 25 years ago, the death sentence was imposed and execution followed. Before her execution, the client conveyed the subject farm to a relative for life with the remainder interest to Harold M. Hull, the husband in this case. The husband succeeded to fee simple ownership in 1971 on the death of the life tenant.

Section 452.330, RSMo 1978 provides that all property which either or both spouses acquire during the marriage is marital property regardless of the record title unless the acquisition be by circumstances particularly qualified as exceptions. One of these exceptions and that which is applicable here is property acquired by gift. Property acquired during the marriage is presumptively marital property and will be treated as such until the presumption is overcome by showing application of one of the exceptions. The burden of proving the exception falls on the party attacking the statutory presumption. C.B.H. v. R.N.H., 571 S.W.2d 449, 456 (Mo.App.1978). Whether or not a transfer is a gift is a question of fact. Boyers v. Boyers, 565 S.W.2d 658, 660 (Mo.App.1978).

Substantially all of the evidence as to circumstances which accompanied conveyance of the remainder interest in the farm property to the husband came from his testimony. No significant detail of that evidence was contradicted. In brief, the evidence-showed that Hull had previously represented this client in an estate matter and in a divorce and was retained when the criminal charges arose. The initial fee paid covered all services in the case and no fee was owed and no bill was later rendered or was outstanding. Services rendered by Hull in the criminal case were limited because the client chose to plead guilty.

In contemplation of the client’s death by execution, she gave a power of attorney to Hull and requested that he sell her personal property, pay her debts and use the remainder for funeral expenses. She expressed gratitude to Hull for having stood by her after her arrest and during her prosecution. The deed of the farm property was not prepared by Hull, who had assumed by pri- or understanding that the farm was to be conveyed to a relative. Hull’s knowledge that the remainder interest was to be his came only after the deed had been drawn and signed. The value of the farm in 1953 was approximately $34,000.00, with Hull’s remainder interest being the value remaining after deducting the value of the life estate.

The wife argues that the husband’s acquisition of the farm property arose from an attorney-client relationship and even though not accompanied by any express or implied agreement for the rendition of services, the transfer was motivated at least by past services performed if not by future services to be .rendered. In this, she contends, she is entitled to share because her support as a homemaker equates her as a partner in the fruits of her husband’s business.

A gift is a voluntary transfer of land or goods from one person to another made gratuitously and not upon any consideration of blood or money. Starks v. Lincoln, 316 Mo. 483, 291 S.W. 132 (1927); Moore v. Smith, 33 N.C.App. 275, 235 S.E.2d 102 (1977); Blackstone (2 Commentaries 440). A gift is a voluntary transfer of property without consideration or compensation as an incentive or motive for the transaction. Pilkington v. Wheat, 330 Mo. 767, 51 S.W.2d 42 (1932). A gift is a voluntary and gratuitous assignment of something by one without compensation to another who takes it without valuable consideration. Browning v. Browning, 551 S.W.2d 823 (Ky.App.1977).

The burden of proof to establish a gift therefore is essentially to demonstrate the negative, that is, to show that the transfer was without an. exchange of payment, that no prior obligation was thereby discharged and that no future obligation was thereby incurred. In the present case, these elements were shown by the husband’s testimony received without contradiction that the deed was made without his advance knowledge, that motivation for the conveyance was expressed in his client’s concurrent expression of appreciation for past services and that all charges for services rendered and to be rendered were fully paid by the original retainer deposit of $2,500.00. Although some services in winding up the client’s affairs were to be performed after her death, no evidence reflected any suggestion of additional fees contemplated and no fees were owed at the time the deed was made.

In arguing against characterization of the conveyance here as a gift, the wife confuses the restrictive meaning of the term “consideration” when applied to a transaction in goods or lands with general usage of the word in everyday affairs. In the sense of motivation, an appreciation for past personal and professional services was indeed the expressed consideration which impelled transfer of the remainder interest in the farm. Any gift no doubt is generated by some favorable climate or experience which evokes donative impetus. Such, however, is not the samé quality of consideration, in the sense of value received, which precludes a transfer from being a gift.

So, too, it must follow that the prior experience of donor and donee here as client and attorney and the resulting gratitude expressed by the client as her reason for making the gratuitous transfer does pot require that commercial attributes attach. The transfer here having been without compensation, it was a gift irrespective of how the donative impulse was generated. The trial court correctly held the farm to be nonmarital property because acquired by the husband as a gift.

Even assuming the farm to have been a gift, however, the wife contends that the increase in value accruing thereafter and comprising at least three-fourths of current value is marital property because such increase was accumulated during the marriage and is not otherwise excludable under the statute. This she argues because Section 452.330-2(5), RSMo 1978 only excludes from marital property the increase in value of property acquired prior to the marriage. In furtherance of this point, the wife notes that family income was used to cover farm expenses and to retire farm debts and family assets were encumbered when loans were obtained by the husband for farm improvements.

The statutory directives for identification of marital and nonmarital property do not, as the wife here suggests, contemplate any subclassification whereby an asset in part partakes of the attributes of nonmarital property and in part is considered marital property. Thus, in Conrad v. Bowers, 533 S.W.2d 614, 624 (Mo.App.1975), one of the first cases construing the dissolution of marriage law, the court stated, “Such property [acquired after the marriage but in exchange for property owned prior to the marriage] would, if the presumption is overcome, remain the separate property of the spouse and upon dissolution be set apart to such spouse.”

In Stark v. Stark, 539 S.W.2d 779, 782 (Mo.App.1976), this proposition was reinforced by the holding that the character of separate property is not altered because both spouses join in signing a note and mortgage encumbering the property and family funds are applied to discharge the debt. Finally, in Davis v. Davis, 544 S.W.2d 259 (Mo.App.1976), corporate stock owned by the husband prior to the marriage was held to have retained its status as separate property despite payment subsequent to the marriage for a major part of the purchase price of the corporate assets.

These authorities and the language of the statute require the conclusion that assets which are separate property retain that identity and are not subject to division by the court in a dissolution of marriage action regardless of changes in value by appreciation or depreciation. This is not to say, however, that a spouse may not be held to have contributed separate property to the marital accumulation if a clear intention thereof is evidenced. Stark v. Stark, supra. No such evidence was offered in the subject case where, to the contrary, it appeared that the husband preserved the separate character of the farm and, on at least one occasion, the wife refused to join in signing a note for a farm improvement loan because her name was not on the title to the real estate.

The spouse excluded from participation in the benefit of value appreciation to separate property is not, however, without appropriate compensation if marital assets have contributed to that increase. Thus, in Cain v. Cain, 536 S.W.2d 866, 875 (Mo.App.1976), the court observed that retirement of the mortgage debt on the husband’s separate property by use of money constituting marital property is a relevant factor for the court to consider in dividing marital property. This is not to say that the separate property thereby acquires the status of marital property or that the other spouse is entitled to benefit from value increases in the separate property resulting from independent forces of the marketplace and the economy. The increment to which this principle applies is that demonstrated to have come from marital resources and efforts.

In the present case, no such evidence was presented by the wife. We are uninformed as to the details of loans obtained for farm purposes, the amounts and sources of funds used for repayment, the disposition of farm income, if any, and the expenditure of marital resources for farm maintenance and improvements, if any. Such being the state of this record, we are similarly unable to determine the weight given these factors by the trial court in the division of marital property and quite apparently are precluded from faulting on that account the property division which was made. No abuse by the trial court of its discretion in making a just division of marital property appearing, that division and the related disposition of separate property must be affirmed. Arp v. Arp, 572 S.W.2d 232 (Mo.App.1978).

Next, the husband assigns as error the award of maintenance to the wife contending, first, that the award cannot stand because not accompanied in the judgment by recitation of supporting facts enumerated in Section 452.335, RSMo 1978 and, second, that the award was not warranted by the evidence and was excessive.

Section 452.335, RSMo 1978 does limit the courts to awards of maintenance only when the spouse seeking maintenance lacks sufficient property to provide for reasonable needs and is unable to obtain support through appropriate employment. The judgment entry in this case is silent as to these factors. Of particular significance, however, is the absence in this case of any request by counsel in accordance with Rule 73.01(l)(b) for a declaration by the court of findings on controverted fact issues.

In Stark v. Stark, supra, it was held that Rule 73.01(2)(a) imposes no independent duty on the court to render findings of fact and, under the authority of Noland v. Noland, 527 S.W.2d 696 (Mo.App.1975), the fact issues are considered to have been resolved in accordance with the result reached in the case. While Stark, supra, involved division of marital property, Broyles v. Broyles, 555 S.W.2d 696 (Mo.App.1977) addressed the same issue in matters affecting the award of maintenance and held the same rule to be applicable. Where no party requests findings of fact, an award of maintenance is not deficient for failure to announce that the award is made in accordance with particular facts as to employment potential and property resources.

As to evidence bearing on the allowance of maintenance and the amount, the determination made by the trial court is discretionary and appellate review is only to determine if that discretion has been abused. Sawtell v. Sawtell, 569 S.W.2d 286 (Mo.App.1978). The fact of an order for maintenance having been made in this case presupposes that the trial court found the wife's reasonable needs to require supplement above the sums derived from marital property apportioned and income from possible employment.

Ascertainment of reasonable need involves consideration of several relevant factors which have been discussed at length in prior cases and which need not be discussed again here. It is sufficient to note that reasonable needs encompass the factors of the length of the marriage, Brueggemann v. Brueggemann, 551 S.W.2d 853 (Mo.App.1977); the standard of living enjoyed, Butcher v. Butcher, 544 S.W.2d 249 (Mo.App.1976); contributions toward development of the husband’s earning capacity, D_ E_ W_ v. M_ W_, 552 S.W.2d 280 (Mo.App.1977); conduct of the parties during the marriage, C.B.H. v. R.N.H., 571 S.W.2d 449 (Mo.App.1978) and the age and physical and emotional condition of the spouse. In re Marriage of Cody, 572 S.W.2d 635 (Mo.App.1978).

The wife in this case was 58 years of age at the time of trial and although in good health and trained in education and nursing, she had had no significant employment outside the home during 35 years of marriage. The family had enjoyed a comfortable standard of living consistent with an accumulated net worth of more than $200,000 in marital assets and more than $300,000 in the husband’s separate property. Some evidence indicated marital misconduct by the husband.

The marital assets awarded to the wife in cash could yield, if invested at 7.25%, a sum sufficient to meet the wife’s current expenses estimated conservatively. Such, however, does not take into account the expense of income taxes nor reduction of invested principal by expenditures for non-budgeted items. At the time of trial, the husband was receiving a salary of $19,-200.00 a year and the wife was not employed. While suggestion is made that the wife is employable and should seek work and that the husband is not enjoying good health and suffered a reduction in income after the trial, these are appropriate subjects for consideration in a motion to modify the maintenance award, not in this appeal.

To warrant reversal or revision on appeal, the amount of maintenance granted must be patently unwarranted or wholly beyond the means of the spouse thereby obligated to pay. Sawtell v. Sawtell, supra. The facts in this case compel neither conclusion, particularly because the trial court possesses considerable discretion in the granting of maintenance. No abuse of that discretion appears.

Finally, the husband contends that the court erred in failing to reduce marital assets Awarded to the wife by that amount of 1977 income taxes proportionate to the division of such assets. An assessment to this effect was included in the court’s memorandum which preceded entry of judgment and provided that the wife would be obligated for payment of 76 percent of 1977 income taxes. This award, however, was not included in the judgment which omitted any mention of tax liabilities and their incidence.

The unsigned memorandum earlier discussed cannot be employed to inferentially charge error in the judgment because of variances between the two, as the husband suggests in his argument. The memorandum was of no dispositive import. The decretal provisions of the judgment control. They cannot be enlarged or diminished by findings or by a memorandum opinion, even though part of a single document. Page v. Page, 516 S.W.2d 537 (Mo.App.1974). Any alleged error by the trial court in failing to charge the wife with a proportionate share of 1977 taxes is reviewable as are the other decisions made by the court in the exercise of its discretion and as reflected in the judgment entered.

The husband understandably argues that because the wife received the greater portion of marital assets including, it must be assumed, a concurrent portion of proceeds remaining from 1977 earnings and income, she should pay an equal share of the tax imposed on that income. The difficulty encountered by the trial court on this subject and the impediment which appears to have prompted a dispositive change between the date of the memorandum and the entry of judgment was the disagreement of the parties as to how much tax was due.

From the memorandum, it would appear that the court was disposed to apportion the 1977 tax liability on the percentage ratio of the respective shares in marital assets. Such, however, would have required expression in the judgment entry of specific amounts rather than percentages because any other provision, such as with the use of percentages, would have been uncertain and unenforceable. Faulkner v. Faulkner, 559 S.W.2d 545 (Mo.App.1977).

As appears from correspondence exchanged among counsel for the parties and the court subsequent to filing the memorandum, disputes were encountered as to allocation of the husband’s income between the years 1977 and 1978 and the computation of taxes. Although a percentage formula had been established, the figures to which the formula was to be applied were uncertain and counsel were in disagreement as to interpretation of tax reporting requirements. The court resolved the problem by the practical solution of omitting any allocation of tax liability between the parties. This result was entirely appropriate as an answer to the acrimonious dispute between the parties following expression of the court’s proposed decision on other issues. The trial court was not the appropriate forum to litigate federal income tax questions. The result here leaves the parties in a position to continue their disputes over tax questions, if they so choose, before the tribunal accustomed and equipped to decide such issues.

The judgment is affirmed.

All concur.

      . Such memorandum, as hereafter noted, is of doubtful import but is employed as a source for description and valuation of assets, the valuations of which were not significantly disputed.


author: SWOFFORD, Judge.

text:
    In re the MARRIAGE OF Otho S. PATE, Petitioner-Respondent, and Sue V. Pate, Respondent-Appellant.
    No. 30416.
    Missouri Court of Appeals, Western District.
    Dec. 3, 1979.

      Joseph Y. DeCuyper, Hsiang-Lin Lee, Snowden & DeCuyper, Kansas City, for respondent-appellant.
    William E. Shull, Gettig, Coulson & Shall, Stephen V. Crain, Kansas City, for petitioner-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and CLARK, JJ.
   SWOFFORD, Judge.

This case involves an action brought by the respondent-husband (petitioner below) for dissolution of his marriage with the appellant-wife (respondent below) in which he alleged that the marriage was irretrievably broken and there was no likelihood that it could be preserved. The wife by her verified answer denied that there was no reasonable likelihood that the marriage could be preserved and denied the marriage was irretrievably broken, and asked that the husband’s petition be dismissed or, in the alternative, that the court enter a decree of legal separation, divide the marital property, and award her reasonable maintenance and attorney’s fees. No children were born of this marriage.

Upon these pleadings the evidence was heard and the trial court, after making extensive findings of fact and conclusions of law, decreed that the marriage was irretrievably broken and entered a decree of legal separation under the wife’s alternative request, and awarded the wife $48,-000.00 in cash and a 1976 Suburban motor car and a 1973 Airstream house trailer valued at $11,000.00 as her share of the marital property. The decree did not award her any maintenance or attorney’s fees. The appellant-wife raises on this appeal four assignments of error, namely: (1) that it was error for the court to decree that the marriage was irretrievably broken and that there was no reasonable likelihood that it could be preserved; (2) the trial court erred in failing to include certain certificates of deposit purchased from funds in a joint checking account as part of the marital property; (3) the trial court erred in not providing her with separate maintenance under the terms of § 452.335 RSMo 1978; and (4) the court erred in finding that the appellant-wife had sufficient funds to pay her own attorney’s fees.

The appellant’s Point I as it appears would seem to be based upon a position that the evidence did not support the finding in the court’s decree that the marriage was irretrievably broken with no reasonable likelihood that it could be preserved. However, it is clear from the argument portion of the appellant’s brief that her real complaint is based upon the failure of the judgment and decree to specifically find the existence of one of the five elements upon which the court must be satisfied under the terms of § 452.320 RSMo 1978 before a finding and decree that the marriage is irretrievably broken is authorized.

Pertinent to this point is § 452.305 RSMo 1978, which provides in part:

“1. The circuit court shall enter a decree of dissolution of marriage if
* * * * * *
(2) The court finds that there remains no reasonable likelihood that the marriage can be preserved and therefore the marriage is irretrievably broken; and
* * * * * *
2. If a party requests a legal separation rather than a decree of dissolution of marriage, the court shall grant the decree in that form.”

Under § 452.305(2), quoted above, it was held that where a request by a husband in response to his wife’s petition for dissolution was to grant a legal separation, the court was obliged to grant the decree in that form upon finding that the marriage was irretrievably broken. Smith v. Smith, 561 S.W.2d 714, 716-717[1, 2] (Mo.App.1978); see also, McRoberts v. McRoberts, 555 S.W.2d 682, 683[1] (Mo.App.1977).

So here the wife’s alternate request that she be granted a decree of legal separation, both under the express terms of the statute and subsequent decisional law, as declared in Smith v. Smith, supra, and McRoberts v. McRoberts, supra, required that the decree in the case at bar take the form of a decree of legal separation upon a finding that there was no reasonable likelihood that the marriage could be preserved and that the marriage was irretrievably broken. This brings to focus in this case the terms of § 452.320 RSMo 1978, which provides in pertinent part:

u * * *
2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and after hearing the evidence shall
(1) Make a finding whether or not the marriage is irretrievably broken and in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of the following facts: (Emphasis added)
******
(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
******
See Gummels v. Gummels, 561 S.W.2d 442 (Mo.App.1978).
(Subparagraphs (a), (c), (d) and (e) of this statute have no relevancy to the case at bar and are therefore not set out herein.)

It is apparent from this record that the court below did not specifically set out in its findings' of fact, conclusions of law, or decree, a finding containing the specific wording of § 452.320 — 2(l)(b) as set forth above. While it appears from the record that the parties both submitted requested findings of fact and conclusions of law, such are not included in the transcript, so this Court is without information as to whether the court below was requested to specifically find that it was satisfied that the appellant-wife had behaved in such a way that the respondent-husband could not reasonably be expected to live with her. Such being the state of this record, this Court cannot gauge the effect, if any, of Rule 73.01(2)(a) in this case.

So far as this Court is concerned, it is still an open question as to the legislative intent and the meaning of § 452.320-2(1), except that it is mandatory that the trial court find, as an ultimate fact, that the marriage is irretrievably broken after considering all relevant factors and in so doing be “satisfied” of one or more of five areas of fact set out in § 452.320-2(l)(a-e). In this case, this state of “satisfaction” needed to be reached, that the husband could not reasonably be expected to live with the respondent. This Court refuses to hold that the statute requires the trial court to find each and every relevant factor separately that leads it to the conclusion that the parties could not reasonably be expected to continue living together as husband and wife. Without engaging in a debate of semantics it would appear that the Legislature intended that some distinction be applied to the terms “make a finding” and “satisfy the court” but that problem demands no solution here and this Court does not undertake to do so. This Court concludes, however, that it is not an unusual or burdensome requirement that the court specifically make a finding in this case of the preliminary conclusion that the respondent could not reasonably be expected to continue living with the appellant, a conclusion amply and convincingly supported by the evidence. This requirement here directly ruled, was adopted by the Eastern District of this Court, perhaps by way of dictum, in the case of In re Marriage of Capstick, 547 S.W.2d 522, 523[1, 2] (Mo.App.1977).

Our task in this area is to review the record and judgment to ascertain whether the ultimate finding that the marriage was irretrievably broken was supported by substantive evidence. In so doing, we proceed within the limitations placed on such review by Rule 73.01 V.A.M.R., and Murphy v. Carron, 536 S.W.2d 30, 31[1-3] (Mo. banc 1976), and subsequent decisions.

When so viewed, the evidence clearly,- by substantial evidence, established the following facts:

The marriage here involved was solemnized on June 17, 1969 (F.F. No. 1) and the parties separated June 11,1977 (F.F. No. 6). At the time of the trial, the husband was 72 years of age and the wife was 55 years of age (F.F. No. 7). At the time of the marriage the husband was a part-time practicing medical doctor with an income of approximately $10,000.00 per year (F.F. No. 12). Formerly, he had engaged in the active practice of medicine and had also held the office of Coroner of Clay County and Medical Director for North Kansas City, Missouri. The limitation of his practice was occasioned by his age and health.

At the time of the marriage the wife was employed as a fund raiser for the Kansas City Chapter of the American Heart Association and was earning approximately $8,500.00 per year, plus expenses (F.F. No. 13). Prior to her work for the Heart Association, she was Program Director for the local branch of the American Cancer Society. Other than in that line of work she had no special skills or training. Her health was good except for high blood pressure, for which she took medication.

The husband was suffering from a heart condition and was taking medication in 1977 (F.F. No. 10). This heart condition first developed in 1943-1944 and’during a vacation in Florida in February, 1973, he had a severe attack and was hospitalized. This was followed by six subsequent attacks, according to the testimony of the wife, each of which required hospitalization, and during this period the husband had surgery at the hands of the famous Dr. DeBakey at Houston, Texas to open the carotid artery. Later, a pacemaker device was installed in aid of the heart function.

Prior to November 11, 1977 the parties argued and disagreed from time to time, and on three occasions contemplated divorce (F.F. No. 8). Most of the difficulty stemmed from conflicts between the parties arising from the husband’s interest in his two sons and his former wife, Margaret. While there is no claim of any personal impropriety in this connection, it is obvious that it was a fertile source of argument, bickering, dispute and unpleasant encounters, which on three occasions led to serious discussions and contemplation of divorce. This overindulgence toward his sons and former wife on the part of the husband and, perhaps, jealousy or irritation on the part of the wife, led to increasing friction and loss of control of emotions and reason, which culminated in a physical episode on June 11, 1977 during the course of which the wife pushed the husband so that he fell against a bedside table and a bed (F.F. Nos. 9,10) and was ordered from the home by the wife. He went to his son’s home and the wife placed all of his clothing and personal belongings in the front yard of the home, where they were retrieved by the husband and his son. He did not thereafter occupy the home, no reconciliation was attempted by either party, and the separation became permanent thereafter (F.F. No. 11). This action for dissolution followed after a lapse of several months.

The husband, Dr. Pate, testified in substance that so far as he was concerned, under the long-standing conditions of the marriage and the state of his health the marriage was irretrievably broken. The facts above summarized came from both the parties’ testimony and was without any substantial dispute, except the appellant denied that she was the aggressor in the argument and resulting physical encounter of June 11, 1977, and.stated that her husband “beat her up” on that occasion. Her testimony as to. the salvage of the marriage was confined to the bold and isolated statement (opinion) that the marriage was not irretrievably broken, unsupported by any reasons or facts that would lead to that belief. Neither did she testify as to any facts or conditions that would warrant the conclusion that the husband could be reasonably expected to resume the marital relation with her.

It should be here noted that the record reveals that the husband was not free from fault throughout the course of this marriage and to say the least, showed a lack of good judgment in his relationship with his sons and former wife, pertaining to financial matters, most of which were known to the appellant-wife.

The question of fault is not determinative of whether a marriage should be dissolved (or a decree of legal separation entered). This Court’s duty is confined to a determination of whether the evidence warranted the court below to find that there remained no reasonable likelihood that the marriage could be preserved and therefore the marriage was irretrievably broken. In re Marriage of Capstick, 547 S.W.2d 522[1—3] (Mo.App.1977). This Court should set aside the decree only if there was insufficient evidence to support the trial court’s finding to that effect. The power of this Court to do so should be exercised with great caution and the decree should be set aside only if this Court has a firm belief that the decree is wrong. Murphy v. Carron, supra; Gummels v. Gummels, 561 S.W.2d 442, 443[3] (Mo.App.1978). This record is replete with substantial evidence to support the decree entered below resolving this question and the court reached the proper conclusion.

Appellant’s Point I is ruled against her as to the sufficiency of the evidence. However, because of the technical point raised by her in relation to the sufficiency of the decree as to the findings of fact, as above noted, the decree and judgment of the court below is amended by the mandate herein as hereinafter set forth. Rule 84.14.

The appellant-wife asserts as her Point II on this appeal that the court erred in failing to include as marital property certain certificates of deposit purchased by money on deposit in a joint checking account during the marriage. She makes no complaint as to those items which the court found to be marital property and therefore subject to distribution between the parties, nor as to the distribution of those items. Her position is that the C/D’s purchased from joint funds should have been included as marital property subject to such distribution by reason of the presumption that property owned by husband and wife jointly is marital property and that such presumption is not rebuttable. She relies upon the provisions of § 362.470 RSMo 1978 under the laws governing Banks and Trust Companies, and Section 369.150 RSMo 1978 relating to Savings and Loan Associations. It is apparent from the terms of these statutes that they are intended to cover and extend only to the authority of such financial institutions to pay out funds of a jointly held account to one of the named owners and to protect them against claims arising from such authorized payouts. Neither statute bears directly upon the problem here being considered nor do the two cases cited by the appellant in support of her position. Rather, the statutory provisions here directly involved are found in § 452.330 RSMo 1978 which deals directly with disposition of property in connection with dissolution proceedings. Pertinent here, this statute provides that the court set aside to each spouse his or her premarital property and make divisions as to marital property. The statute further provides, § 452.330-2.(2):

“2. For purposes of sections 452.300 to 452.415 only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:
******
(2) Property acquired in exchange for property acquired prior to the marriage * * * >9
******
3. All property acquired by either spouse subsequent to marriage * * is presumed to be marital property regardless of whether title is held individually or by spouses in some form of coownership * * *. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2.
* * * »

(Emphasis added)

It thus appears that the presumption of marital property upon which appellant relies may be overcome or rebutted. See Forsythe v. Forsythe, 558 S.W.2d 675, 678[5, 6] (Mo.App.1977); Conrad v. Bowers, 533 S.W.2d 614, 621[10] (Mo.App.1975). Thus by statutory authority a showing that the C/D’s claimed here to be marital property were acquired by the husband in exchange for premarital property owned by him overcomes the presumption. Stark v. Stark, 539 S.W.2d 779, 782[2] (Mo.App.1976); Davis v. Davis, 544 S.W.2d 259, 264[4, 5] (Mo.App.1976).

The evidence was uncontested that at the time of the marriage the respondent held premarital assets having a total approximate value of $128,000.00 which included the checking account in North Kansas City State Bank which he used not only for general expenses but also a trading account for his investments, which consisted substantially of certificates of deposit and pass book accounts in Sentinel Federal Savings & Loan Association. The appellant-wife disclaimed any detailed knowledge of his holdings and assets. She brought to the marriage as premarital property a $2000.00 savings account and an automobile. She stated that while she remained employed for the year and a half after her marriage to the respondent she put her paychecks into this account and she stated that she put her husband’s name on her savings account. Sometime after the marriage her husband told her he had made arrangements so that she could draw checks on the account and thereafter she wrote most of the checks for their joint expenses, medical bills, etc. The bank records as to how this account was actually carried were not in evidence and are not before this Court.

However, the respondent stated he wanted his wife to have the use of these funds for her personal expenses and the living expenses of both, and she was authorized to use it for those purposes without restriction. During the marriage the respondent apparently deposited funds from his investments and income from whatever source in that account, and from time to time purchased the C/D’s here in dispute, which at the separation decree amounted in face value to slightly over $100,000.00. All of thése were in his name and one or the other of his sons, except one registered in his name and that of the appellant in' the amount of $27,359.44.

The whole impact of the respondent’s testimony was that he did not have any intention at. any time to transfer ownership of his premarital assets to the appellant but did intend to afford her the use thereof. In fact, she knew nothing about any of the details of such assets and stated she did not know that she was a joint owner of the checking account (if she was) until the day of the trial.

Under the state of this record the court did not abuse its discretion in holding that the bank account was not marital property. The presumption, if it ever came into being under these facts, was rebutted.

The court found that the marital property consisted of:

The motor vehicle and trailer (the only evidence as to value thereof was $11,000.00 testified to by the respondent) $11,000.00
Proceeds of sale of home 27,520.51
Proceeds of sale of household goods 1,529.02
Proceeds of sale of TWA stock $ 3,544.417
C/D Sentinel Federal Savings & Loan (registered in joint names) 27,359.44
Prestige Account — Sentinel Savings (No value shown)
$70,953.44

The court awarded the appellant the motor vehicle and trailer and $48,000.00 in cash in the division of the marital property, a total of $59,000.00.

Under a multitude of authorities, including those cited herein, the trial court had broad discretion in determining the identity of marital property and in its division. No abuse of that discretion or error of law appears, and the appellant’s Point II is ruled against her.

Her Points III and IV allege error in failing to award her maintenance and attorney’s fees.

As to the claim for maintenance, there can be no dispute on this record that the respondent, due to his advanced age and the perilous condition of his health, was no longer practicing his profession as a medical doctor and is and will remain otherwise unemployable. His income, including all sources, is approximately $1350.00 per month.

The appellant has made no effort toward employment in the field of the operation of charitable organizations, in which she has a broad experience with the Heart and Cancer Associations, or in any other field, and is without income. While she has no particular training or skills, she enjoys comparatively good health except for some high blood pressure, and is obviously a woman of intelligence. There are no children of this marriage. The appellant is apparently now living in Florida and testified that her living expenses were approximately $1050.00 per month.

Section 452.335 RSMo 1978, provides in part:

“1. In a proceeding for * * * dissolution of marriage or legal separation * * * the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, * * ” (Emphasis added)

In this area the trial court has broad discretion and its exercise of such discretion should not be disturbed on appeal unless an abuse thereof clearly and convincingly appears. Beckman v. Beckman, 545 S.W.2d 300[1, 2] (Mo.App.1976); Naeger v. Naeger, 542 S.W.2d 344, 347[6] (Mo.App.1976). In light of all of the factors appearing in this record, the age and condition of the parties, the absence of any responsibility for children and the division of marital property to the appellant, no abuse of discretion appears in the denial by the court of an award of separate maintenance.

What is said above about the denial of separate maintenance applies with equal force to the matter of attorney’s fees. Here, also, the matter is largely within the sound judicial discretion of the trial court. Hebron v. Hebron, 566 S.W.2d 829, 835-836[14] (Mo.App.1978) and cases cited therein. The refusal to grant attorney’s fees on this record was not an abuse of discretion. Appellant’s Points III and IV are ruled against her.

Under the authority granted this Court by Rule 84.14 (formerly part of Rule 83.13) the judgment and decree below is amended by changing Paragraph 4 of the Conclusions of Law portion thereof to read:

“4. That the respondent-wife has behaved in such a way that the petitioner-husband cannot reasonably be expected to live with the respondent and there remains no reasonable likelihood that the marriage can be preserved and, therefore, the marriage is irretrievably broken.”

As amended, the judgment and decree of the court below is in all particulars affirmed.

All concur.

      . Many of these facts were included in the Court’s findings of fact, as noted, albeit in summary form. The Court’s findings are designated (F.F. No_).

      . The pleadings adopt the date of June. 1977 and the testimony of both parties unqualifiedly sets the date of the last altercation and final separation as June 11, 1977. The use of the date November 11, 1977 in the judgment is in error, although basically not material.