author: SOMERVILLE, Judge.

text:
    In re the MARRIAGE OF M. Randall VANET, Appellant, and Charlotte W. Vanet, Respondent. In re M. Randall VANET, Petitioner. M. Randall VANET, Appellant, v. Charlotte W. VANET, Respondent.
    Nos. KCD 27751, KCD 28396 and KCD 28606.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 29, 1976.

      Max W. Foust, Morris, Foust, Beckett & Ponick, Kansas City, for appellants.

      Thomas D. Cochran, Piedimonte & Cochran, Independence, William V. North, Cooke, North, Dickson & Bornholdt, Chartered, Prairie Village, for respondent in 27751.
    Ralph L. Martin, Pros. Atty. by Robert Frager, Asst. Pros. Atty., Kansas City, for respondent in 28606 & 28396.
    Before SHANGLER, P. J, and SWOF-FORD and SOMERVILLE, JJ.
   SOMERVILLE, Judge.

Three cases have been consolidated for appellate review. A brief description of each reveals a common thread running through them which prompted consolidation. No. KCD 27751 is an appeal in a dissolution of marriage proceeding wherein the husband challenges the decree entered by the trial court with respect to the division of marital property, the amounts awarded to the wife for maintenance and child support, and the allowance of attorney fees to the wife. No. KCD 28396 is a habeas corpus proceeding initiated by the husband to obtain his release from confinement in the Jackson County Jail pursuant to a judgment finding him guilty of “indirect criminal contempt” for failure to comply with the decree entered in the dissolution of marriage proceeding regarding payment of maintenance and child support. No. KCD 28606 is a direct appeal by the husband from the judgment finding him guilty of “indirect criminal contempt” for failure to comply with the decree entered in the dissolution of marriage proceeding regarding payment of maintenance and child support.

The cases will be addressed in numerical order and relevant facts will be interspersed throughout subsequent discussions touching the various issues raised.

The husband presses for modification of the decree entered in the dissolution of marriage proceeding on three grounds: (1) the division of marital property was inequitable and violative of the guidelines set forth in Section 452.330, RSMo Supp.1973; (2) the amounts awarded to the wife for maintenance and child support were erroneously based on the husband’s prior and anticipated earning capacity and excluded consideration of the wife’s “earning capacity”; and (3) the allowance of attorney fees to the wife was unwarranted in view of the division of marital property, and otherwise unsupported by the evidence.

The marriage was consummated approximately twenty-one years prior to its dissolution. Three minor children are involved, ages eleven, nine, and five, respectively. The wife was awarded custody of the minor children. The husband is a lawyer. Since 1963 the wife has filled the role of mother and homemaker. Prior to 1963 she worked as a secretary. Her secretarial skills consisted of typing and transcribing from recording devices. The decree below divided the marital property between the husband and wife as follows:

WIFE HUSBAND
Family home - fair market value of equity.$44,362.50 Undivided half interest in thirty-seven acres of unimproved land in Platte County - fair market value of equity .$31,267.78
Stocks - fair market value .. 66.25 Stocks - fair market value . 772.50
1969 Buick Station Wagon - fair market value .. 1,150.00 1973 Corvette - fair market value of equity ... 2,909.36
Household furniture and appliances - fair market value .. 7,000.00 Office furniture and apartment furniture - fair market value . 2,500.00

Based on the above values the wife’s share of the marital property totaled $52,578.75 and the husband’s share of the marital property totaled $37,449.64. Percentage-wise the wife was awarded approximately 58% of the marital property and the husband approximately 42%. The husband contends that this disparate division of marital property was further compounded by the fact that he was saddled with approximately $18,695.07 in debts (exclusive of indebtedness against the undivided one-half interest in the thirty-seven acres of unimproved land in Platte County), which, in reality, effectively shrunk his share of the marital property percentagewise to approximately 26% and increased the wife’s share percentagewise to approximately 74%.

The extent of a trial court’s power to divide marital property in a dissolution of marriage proceeding is not totally unbridled. To the contrary, the extent of a trial court’s power to divide marital property is circumscribed by paragraph 1 of Section 452.330, RSMo Supp.1973, which provides that the trial court “ . . . shall divide the marital property in such proportions as the court deems just after considering all relevant factors including: (1) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker; (2) The value of the property set apart to each spouse; (3) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children; and (4) The conduct of the parties during the marriage.” Paragraph 1 of Section 452.330, supra, however does not command parity in the division of marital property, nor does it mandate that it be done with mathematical nicety by means of a stereotyped mathematical formula. If such was intended, it would have been an easy drafting task for the legislature to have said that marital property shall be divided equally between the spouses. The legislature in its wisdom obviously saw fit to vest trial courts with broad discretionary power in determining the respective portions of the spouses when making a division of marital property.

It is also significant that the legislature voiced a proper concern for the welfare of minor children of a marriage with respect to the division of marital property — the “desirability” of awarding the “family home to the spouse [in this instance the wife] having custody of any children" being a relevant factor for consideration in dividing the marital property. Subparagraph (3) of paragraph 1 of Section 452.330, supra. In light of the desirability of awarding the family home to the spouse having custody of any children, in this instance the wife, the division of marital property takes on a different complexion. Any tone of disparity seemingly cast by the division is further mellowed by the nature and value of the remainder of the marital property which the wife received — stocks valued at $66.25, a six year old Buick station wagon valued at $1,150.00, and household furniture and appliances valued at $7,000.00, with a total fair market value of $8,216.25. On the other hand the decree entered by- the trial court set over marital property to the husband having a fair market value of $37,-449.64. Except for stock having a fair market value of $66.25, the remainder of the marital property set over to the wife, to-wit, the family home, the six year old Buick station wagon and the furniture and appliances, usewise inured to the benefit of the children of the marriage as well as to the wife.

The proportionate share to be set over to each spouse in the division of marital property is a matter peculiarly within the discretion of the trial court in view of the statutory language of paragraph 1 of Section 452.330, supra, as judicially construed in this state, and will not be disturbed on appeal absent a showing of an abuse of discretion. In re Marriage of Powers, 527 S.W.2d 949, 951 (Mo.App.1975); Conrad v. Bowers, 533 S.W.2d 614, 623 (Mo.App.1975), and Murray v. Murray, 538 S.W.2d 587, 588 (Mo.App.1976). This court does not mean to imply that the “desirability” of awarding the family home to the spouse having custody of minor children is an island in and of itself, to the exclusion of all other relevant factors for determining a “just” division of marital property. However, in view of the particular facts of this case, the trial court’s obvious consideration of this statutorily recognized “relevant factor” in determining a “just” division of the marital property insulates its decree from being castigated as an abuse of discretion. Moreover, other relevant factors statutorily prescribed in subparagraphs (1), (2), (3), and (4) of paragraph 1 of Section 452.330, supra, to be considered in determining a “just” division of marital property — the contributions of the respective spouses to the acquisition of such property, including the wife’s contribution as a “homemaker”, the value of any non-marital property set apart to either spouse, the economic circumstances of each spouse at the time the marital property is divided, and the “conduct” of the spouses “during the marriage” — bespeak of a “just” division of marital property in this case rather than an “unjust” or “inequitable” division.

The record discloses that the wife was the principal “breadwinner” after the marriage while the husband completed his legal education and that she continued working and contributed to the family income until the advent of the first child in 1963. The financial contribution made by the wife towards the husband’s legal education was of inestimable value with respect to acquisition of the marital property. The non-marital property set apart to the wife, stocks having a value of $2,148.00 which were purchased with a small inheritance which she received, is of nominal value in view of today’s rampant inflation. The “economic circumstances” of the wife at the time the marital property was divided were far less desirable than were those of the husband since he possessed the earning power of a lawyer while she possessed only the earning power of a secretary of limited skill. Her earning power, at best, was more imaginary than real under existent circumstances. She bore the responsibility of rearing three children of tender age and her entry into the labor market was apparently viewed by the trial court as a matter of last resort. There was no evidence in the record of errant conduct on the part of either spouse during the marriage.

The facts iterated above, when coupled with the desirability of awarding the family home to the wife, since, she was awarded custody of the three minor children, completely vitiate the husband’s contention that the division of marital property was “inequitable” and violative of the guidelines laid down by Section 452.330, supra. By the same token, the trial court cannot be said to have abused its discretion in dividing the marital property.

The decree below awarded the wife $400.00 per month for maintenance and $166.66 per month for each child for child support, to be paid bi.-monthly by the husband to the circuit clerk as trustee for remittance to the wife as provided for in Section 452.345, RSMo Supp. 1973. The husband does not attack the amounts awarded for maintenance and support as excessive when measured against the needs of the wife and children, and a plethora of evidence is contained in the record to support the size of the amounts awarded.

Notwithstanding the needs of the wife and children, the husband attacks the amounts awarded for maintenance and child support on other grounds. With respect to the amount awarded to the wife for maintenance, he contends that the trial court obviously excluded consideration of the “earning capacity” of the wife and erroneously predicated the same upon his past and anticipated earning capacity rather than upon his present income. To supplement this contention, the husband argues that the amount awarded for maintenance ignores consideration of subparagraph (1) of paragraph 2 of Section 452.335, RSMo Supp. 1973 (the wife’s “financial resources” and her ability to meet her “needs independently”) and subparagraph (6) of paragraph 2 of Section 452.335, supra (the husband’s ability “to meet his needs while meeting those of the spouse seeking maintenance”). He ad-vanees a similar contention with respect to the amount awarded to the wife for child support. To supplement the latter, he argues that the amount awarded for child support ignores consideration of subpara-graph (3) of Section 452.340, RSMo Supp. 1973 (the wife’s “financial resources”) and subparagraph (6) of Section 452.340, supra (the husband’s “financial resources and needs”).

Prior to October, 1973, the husband was a member of an established law firm and the record discloses that he had an adjusted gross income of $41,856.87 in 1972 and $40,-279.45 in 1973. For reasons unexplained in the record, the husband decided to “launch out” on his own in October of 1973 and establish his own law firm. Trial of this case began on September 17, 1974. During the transitional period of the husband’s law practice, i. e., the first eight months of 1974, his monthly income averaged $1,786.25. The record also reveals that the husband had work in progress which at the time of trial had not yet matured into fees. Moreover, the husband testified that after, “We have developed our practice a little more, I’m satisfied I will make more than [$]1800.00 a month income ... I made more than that in the past and I’m a good enough lawyer . .”. Beyond question, the record discloses that the trial court, along with other matters, considered the husband’s prior and anticipated earning capacity in fixing the amounts awarded to the wife for maintenance and child support. The husband argues that it was improper for the trial court to do so. Prior to enactment of the Dissolution of Marriage Act (Sections 452.300 to 452.415, RSMo Supp. 1973), it was judicially recognized in this state that the husband’s capacity to pay was a proper consideration in determining marital allowances. Concomitantly, past earnings of a husband were judicially recognized as evidence of his capacity to pay [Weiss v. Weiss, 392 S.W.2d 646, 647 (Mo.App.1965) and Richardson v. Richardson, 524 S.W.2d 149, 153 (Mo.App.1975)] as well as “probable future prospects” [Knebel v. Knebel, 189 S.W.2d 464, 467 (Mo.App.1945) and Page v. Page, 516 S.W.2d 537, 540 (Mo.App.1974)].

A careful reading of Section 452.335, supra, relative to awarding maintenance and of Section 452.340, supra, relative to awarding child support, impel the conclusion that they are devoid of any statutory language excluding or condemning consideration of a husband’s prior and anticipated earning capacity in fixing the amounts to be awarded a wife for maintenance and child support. This court concludes that the husband’s prior and anticipated earning capacity falls within the purview of subpar-agraph (6) of paragraph 2 of Section 452.-335, supra (the “ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance”), which is listed as a “relevant” factor for determining what constitutes a “just” award for maintenance, and within the purview of subparagraph (6) of Section 452.340, supra (the “financial resources” of the husband), which is listed as a “relevant” factor for determining what constitutes a “reasonable” amount for child support.

Judicial determination of a “just” amount for maintenance and a “reasonable” amount for child support, in conjunction with a husband’s capacity to pay, is fraught with difficulty when, as here, the husband is a professional man without a fixed income. A lawyer’s professional education and right to practice law are in the nature of a “financial resource” and a measure of “ability” and should not be lightly discounted. The members of this court are not so far removed from the practice of law that they are blind to the fact that a lawyer’s income is subject to fluctuation, and, if for no other reason, a lawyer’s capacity to pay maintenance and child support, if realistically assessed, properly entails consideration of both his past and anticipated earning capacity.

The husband’s argument that the trial court improperly excluded consideration of the “earning capacity” of the wife in arriving at the amounts awarded for maintenance and child support is barren of persuasion. As previously noted, lie bottoms this argument on the proposition that the wife’s “financial resources” constitute a relevant factor which must be considered in determining the amount to be awarded for maintenance (subparagraph (1) of paragraph 2 of Section 452.335, supra) and the amount to be awarded for child support (subparagraph (3) of Section 452.340, supra). He mistakenly takes the position that his wife’s “earning capacity” as a secretary constituted a “financial resource” to be properly weighted by the trial court in determining the amounts awarded for both maintenance and child support. In doing so he has either overlooked or conveniently ignored the positive mandate of paragraph 1 of Section 452.335, supra: “1. In a proceeding for . . . dissolution of marriage . . . 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; and (2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home." (Emphasis added.) In the instant case the wife was given custody of the three minor children all of whom were of tender years. It is implicit that the trial court concluded that it would be inappropriate to force the wife to seek employment outside the home since she had the responsibility of caring for and rearing the three minor children. Consequently, the wife’s alleged “earning capacity”, under the circumstances of this case, is an illusory “financial resource” at best, and entitled to little if any weight in determining the proper amount to be awarded as maintenance; nor should her “earning capacity” be viably considered a “financial resource” in determining the proper amount to be awarded as child support. It would be the height of judicial inconsistency to say that the wife was entitled to maintenance because of the inappropriateness of forcing her to seek employment outside the home by virtue of the fact she was given custody of the three minor children and in the same breath to say that her “earning capacity” constituted a “financial resource” which should be taken into consideration in determining the proper amount to be awarded as child support. The law is laced with enough unintentional inconsistencies without knowingly adding others where the welfare of minor children is involved.

The able and conscientious trial judge who heard this case was not presented an easy task. He candidly stated in the record that he did not savor the judicial task which confronted him. However, as would be expected by those who know him, he did not shirk his judicial responsibility and with objective fairness concluded that the wife was entitled to an award of $400.00 per month for maintenance and $166.66 per month for each of the three children for child support. This court discerns no abuse of sound judicial discretion on his part in fixing the amounts awarded.

The husband faults the allowance of $1,250.00 to the wife for attorney fees because: (1) the division of marital property, the “earning capacity” of the husband and wife respectively, and certain indebtedness borne by the husband, rendered such allowance improper; and (2) the amount awarded was unsupported by the evidence. The principal argument advanced by the husband appears to be that the wife was equally if not more financially able to pay her attorney than was the husband. Section 452.355, RSMo Supp. 1973, herein applicable, states that the “ . . . court . after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount ... to the other party . for attorney’s fees . . ..”

The “financial resources” of a party referred to in Section 452.355, supra, or, as more basically expressed, the need of a party seeking attorney fees, is but one factor to consider in awarding such fees. There are additional reasons for concluding that the husband’s position is bereft of logic and reason to support it. In view of the disposition, supra, of the complaints leveled by the husband against the division of marital property and the amounts awarded the wife for maintenance and child support, the trial court was obviously unable to say with a clear conscience that the wife had sufficient “financial resources” to bear the expense of this dissolution of marriage proceeding initiated by the husband. To the husband’s credit, he does not penuriously contend that the wife was obliged to spend the fruits of her small inheritance to pay her attorney fees. This court fails to find any abuse of discretion on the part of the trial court in awarding attorney fees to the wife.

The husband’s final complaint is that the amount of attorney fees awarded was unsupported by the evidence. The wife’s attorney, without objection, although not under oath, in open court outlined to the trial judge that he had expended approximately fifty-one hours time in representing the wife and that he charged $50.00 per hour for his services. As stated in Agnew v. Johnson, 352 Mo. 222, 176 S.W.2d 489, 493-94 (1943), cited with approval in Jafarian-Kerman v. Jafarian-Kerman, 424 S.W.2d 333, 340 (Mo.App.1967), “ . . . courts are themselves experts on the question of attorneys’ fees and the judge who personally tries a case and is acquainted with all the issues involved is in a position to fix the amount of attorneys’ fees without the aid of evidence.” This court does not condone the lax manner in which the wife’s attorney presented the amount of time expended in representing the wife and the claimed value of his services. The laxity noticed here has become far too prevalent regarding presentation of the amount and value of legal services claimed in marital proceedings and the bar should take heed of this court’s disapproval of such practice. Nevertheless, since the amount awarded to the wife for attorney fees does not appear unreasonable on its face, and in view of the authorities just cited, this court is unwilling to say that the trial court abused its discretion in fixing the amount awarded to the wife.

As previously noted, case No. KCD 28396 is an original proceeding in habeas corpus brought by the husband. A writ of habeas corpus, as prayed for by the husband, was issued by this court on November 5,1975. Pending final determination of the matter, this court on November 5, 1975, ordered the husband released to bail on his personal recognizance. The husband’s application for a writ of habeas corpus was triggered by the following events. On July 20, 1975, the Prosecuting Attorney of Jackson County, Missouri, with the consent of the wife, instituted proceedings pursuant to Section 452.345, RSMo Supp. 1973, to cite the husband for contempt for failure to pay certain bi-monthly maintenance and support sums which were awarded the wife by the decree entered in the dissolution of marriage proceeding. The matter was heard on November 4, 1975, at the conclusion of which the husband was found guilty of “indirect criminal contempt” and, ostensibly under the authority of Section 476.120, RSMo 1969, he was sentenced to ninety days imprisonment in the Jackson County Jail with the proviso that “[ajfter serving 6 days, he is to be released from custody on probation for one (1) year, under the supervision of the Prosecuting Attorney, on condition he makes future payments regularly, and make up arrearages in accordance with a schedule provided by the Prosecuting Attorney.” The husband’s application for writ of habeas corpus antedated two recent and significantly controlling decisions concurrently handed down by the Supreme Court of Missouri, en banc, on March 8, 1976, namely Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976) and State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976). Stanhope, so far as here germane, held that a judgment providing for imprisonment for contempt for failure on the part of a husband to pay maintenance and support did not violate Art. I, Sec. 11, Constitution of Missouri, forbidding imprisonment for debt. Teefey, supra, held that contempt proceedings pursuant to Section 452.345, supra, to enforce the rights of a wife and to compel obedience by a husband for payment of maintenance and child support fixed by a decree in a dissolution of marriage proceeding were civil in nature and subject to review on appeal. Stanhope and Teefey, supra, leave this court no choice but to conclude that its writ of habeas corpus in No. KCD 28396 was improvidently issued and should be quashed. Particularly so, since the merits of the husband’s attack on the judgment and order of commitment entered in the contempt proceeding can be reached on his appeal therefrom (No. KCD 28606). As noted in Teefey, 1. c. 565, “the fact that that the trial court designated this as criminal contempt does not necessarily make it such”, and the Supreme Court, for dispositional purposes, proceeded to treat the matter as a civil contempt proceeding.

Numerous issues have been raised by the husband on appeal in No. KCD 28606 (the appeal from the judgment entered and the warrant of commitment issued in the contempt proceeding). Many of them have been laid to rest by Teefey v. Teefey, supra, and State ex rel. Stanhope v. Pratt, supra. Issues falling in the category just mentioned will not be addressed because they afford no basis for relief to the husband. The only issues which will be addressed are those unresolved by Teefey and Stanhope and deemed necessary to dispose of this appeal.

The husband alleges and argues that there was no evidence that he was financially able to make the maintenance and support payments which were claimed to be in arrears or that he had intentionally and contumaciously placed himself in a position so that he could not do so. As pronounced in Teefey v. Teefey, supra, l. c. 566-67, in a civil contempt proceeding of this nature, “. . . trial court should be convinced that the person is financially able to make the required payment or that he has intentionally and contumaciously placed himself in a position so that he could not comply with the court’s order.” The court in Teefey, l. c. 567, carefully refrained, however, from deciding which party had the burden of proof with respect thereto: “The question as to which party has the burden of proof in that regard has not been briefed and we do not elect to decide it in this case.” Thus, Teefey apparently left open the question of whether the proponent in a civil contempt proceeding of this nature has the burden of proving that the alleged con-temnor was “financially able to make the required payment or that the has intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders” or whether the alleged contemnor has the burden of proving that he was not “financially able to make the required payment” and that he had not “intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders.” This presents a question of first impression in this state which will likely plague bench and bar until it is decided. If the burden of proof in this regard rested upon the husband, the alleged contemnor, then he will not be heard to complain that there was no evidence that he was financially able to make the maintenance and support payments which were claimed to be in arrears or that he had intentionally and contumaciously placed himself in a position so that he could not do so.

The question of who carries the burden of proof in a civil contempt proceeding of this nature regarding the issue presently under consideration is the subject of an extensive annotation in 53 A.L.R.2d 591, 607-15. As disclosed therein, the overwhelming weight of authority is that the burden of proof rests upon the alleged contemnor. Apparently thirty-five jurisdictions subscribe to the view that the burden of proof rests upon the alleged contemnor, while apparently only three subscribe to the view that the burden of proof rests upon the proponent.

Judicial rationalization for impressing the burden of proof upon the alleged contemnor has variously taken one or several of three approaches — evidence relative to the alleged contemnor’s ability or inability to pay is more readily available to the alleged contemnor than it is to the proponent; the trial court which tried the underlying action has already heard evidence and determined the alleged con-temnor ⅛ ability or inability to pay; and the proponent has established a prima facie case by proving entry of the decree and default on the part of the alleged con-temnor to pay the amount or amounts awarded therein. It strikes this court that there is an additional related reason for holding that the burden of proof should rest on the alleged contemnor. Bearing in mind that the contempt involved is civil in nature (Teefey v. Teefey, supra), as opposed to criminal, the following statement of law contained in 17 C.J.S. Contempt § 84(2), p. 214, reveals an equally cogent rationale for placing the burden of proof on the alleged contemnor: “If an affirmative defense is set up or called for, the burden is on defendant to sustain it. So, where a court order and its violation are established or admitted, the burden is on accused to show facts which will excuse his default, and if the defense or excuse is that of inability to comply with the order, defendant has the burden of proving such inability, that it was real, and not occasioned by his own acts.” This court subscribes to the majority view revealed by the annotation in 53 A.L.R.2d 591, supra. When the proponent in a civil contempt proceeding pursuant to Section 452.345, supra, makes a prima facie case, the financial inability of the alleged con-temnor to make the required payment and that his financial inability to do so was not “intentionally and contumaciously” brought about by his own conduct, is in the nature of an affirmative defense and the burden of proof in this regard is upon the alleged contemnor. Having concluded that the husband carried the burden of proving his inability to pay, and that such was not occasioned by his own conduct, his attack on the sufficiency of the evidence to support the judgment of contempt and warrant of commitment fails.

The husband also attacks the judgment finding him in contempt and the warrant of commitment on the ground they lack specificity and improperly impose probation.

The judgment and warrant of commitment are both silent as to the amount or amounts of maintenance and child support which were in arrears at the time of the hearing. Serving to compound this void, the record discloses an evidentiary conflict between the amount of arrearages claimed due and owing by the proponent, and the amount claimed due and owing by the husband, at the time of the hearing. Citing Gompers v. Buck’s Stove and Range Company, 221 U.S. 418, 447, 31 S.Ct. 492, 55 L.Ed. 797 (1911), the court in Teefey v. Teefey, supra, 1. c. 566, pointedly observed that “[t]he civil contemnor has at all times the power to terminate his punishment by compliance with the order of the court — i. e.: purging.” The judicially recognized right of a defaulting husband to purge himself of contempt is seriously jeopardized if the judgment and warrant of commitment are silent as to the amount of maintenance and child support in arrears. This is especially true when the amount is disputed. Purgation of contempt in the sense at hand is accomplished by payment. If the amount to be paid has not been adjudicated and spelled out in the judgment and warrant of commitment the power to purge oneself of contempt is seriously compromised. A blanket reference to non-compliance with the maintenance and child support payments set forth in a decree entered in a dissolution of marriage proceeding, as was made in the instant case, is not sufficient. As pointed out in 24 Am.Jur.2d, Divorce and Separation, § 770, p. 879 “[a] judgment or order in contempt should state the amount which is in arrears so that the husband may pay the sum and purge himself of contempt . . . ”. The judgment of contempt and warrant of commitment in this case were deficient in this respect. See also Ginsberg v. Ginsberg, 122 So.2d 30 (Fla.App.1960). The proponent, notwithstanding the deficiency mentioned, concedes that the husband on March 14, 1975, paid all maintenance and child support payments which were in arrears as of the date of the contempt hearing. The proponent and the husband apparently resorted to their own knowledge of the facts, good judgment and common sense as to the amount or amounts in arrears. Therefore, any error attached to the complained of deficiency has been rendered moot and purgation of contempt has been effectively accomplished.

The propriety or impropriety of placing the husband on probation appears to be the only remaining issue to be resolved. Civil contempt was judicially designed to coerce obedience rather than to impose punishment. Teefey v. Teefey, supra. Therein lies the cardinal distinction between civil and criminal contempt. The judgment and warrant of commitment in the instant case did not stop at merely finding the husband in contempt .for failure to pay an undetermined number of delinquent maintenance and child support payments and committing him to imprisonment in the Jackson County Jail for such failure. The judgment and warrant of commitment additionally provided that after “serving 6 days, he is to be released from custody on probation for one (1) year, under the supervision of the Prosecuting Attorney, on condition he make future payments regularly, and make up arrearage in accordance with a schedule provided by the Prosecuting Attorney.” (Emphasis added.) The husband’s subjection to probation for one year “on condition he make future payments regularly”, thereby exposing him to the possibility of being imprisoned for the remainder of the 90 day sentence fixed by the trial court, reeks of criminal contempt rather than civil contempt. Literally read and construed, the husband could be reincarcer-ated for the remainder of the ninety day sentence solely upon proof that he missed a future payment of maintenance or child support as scheduled by the decree of dissolution of marriage proceeding regardless of any attendant facts or circumstances. So construed, it would preclude the husband’s right to avoid imprisonment for any alleged future nonpayment by showing that he was financially unable to make such future payment and that he had not intentionally placed himself in a position so that he could not do so. Teefey v. Teefey, supra. So construed, it would deprive the husband of the ten day “grace” period statutorily given him by paragraph 4 of Section 452.345, supra, to correct any future delinquency. Civil contempt as a means of enforcing delinquent maintenance and child support payments in this state is a creature of statutory law. Section 452.345, supra. As construed in Teefey v. Teefey, supra, it is civil rather than criminal in nature and its purpose is coercive rather than punitive. Paragraph 4 of Section 452.345, supra, provides: “If a party fails to make required payment, the circuit clerk shall send by registered or certified mail notice of the arrearage to the obligor. If payment of the sum due is not made to the circuit clerk within ten days after sending notice, the circuit clerk shall certify the amount due to the prosecuting attorney. The prosecuting attorney shall, with the consent of the obligee, promptly initiate contempt proceedings against the obligor.”

Section 452.345, supra, obviously contemplates civil contempt as a remedial vehicle for obtaining relief for past derelictions. It is equally obvious that it does not contemplate probation as a means of enforcing future payments. To hold otherwise would judicially negate the provisions therein requiring notice to the “obligor” and consent of the “obligee” before contempt proceedings are initiated by a prosecuting attorney. Placing a husband on probation, conditioned upon timely making future payments of maintenance or support as ordered and scheduled in a decree entered in a dissolution of marriage proceeding, bespeaks of contempt in the criminal sense and is beyond the purview of Section 452.-345, supra. Probation and civil contempt are conceptually incompatible. Teefey v. Teefey, supra, appears to support and justify this conclusion. Notwithstanding the fact that the judgment and warrant of commitment before the court in Teefey placed the errant husband on probation upon condition that he timely pay all future payments, the court, l. c. 567, noted: “We recognize that if defendant owes any substantial amount of maintenance at the time of this decision that further contempt proceedings will likely be initiated.” Although probation was not involved, the Supreme Court of Oklahoma on at least two occasions was faced with attempts by trial courts to give prospective effect to judgments and warrants of commitment in similar contempt proceedings. On both occasions, the Supreme Court of Oklahoma held that judgments and warrants of commitment predicated on past defaults could not apply or extend to defaults in futuro. By way of explanation, they stated that the respective trial courts had exceeded their “jurisdiction”, “power”, and “authority”. See Ex parte Townsend, 177 Okl. 286, 59 P.2d 279 (1936) and Green v. Green, 373 P.2d 15 (Okl.1962).

The proponent contends that the power to place a once errant husband on probation, even though the contempt proceeding is civil in nature, is “critically important” to “assist” and “enable” the state to compel future compliance with maintenance and child support payments spelled out in a dissolution of marriage decree. The thrust of this argument seems to be that the rights and procedural safeguards surrounding a husband when a sentencing court is called upon in the future to determine whether he has violated the terms of his probation should be something less than the rights and procedural safeguards possessed by him in the original contempt proceeding. This argument does not wash and lacks both logic and statutory authority to support it. Stripped of all rhetoric, the proponent argues that the threat of incarceration for future non-compliance will have a “guillotine” effect on a once defaulting husband. Such an argument, by its very nature, seeks to denigrate and do away with certain basic rights and procedural safeguards given a husband regarding future non-compliance with maintenance and child support payments spelled out in a dissolution of marriage decree. The power to initiate future contempt proceedings with regard to future instances of non-compliance is sufficiently effective to impress upon a husband, once found guilty of contempt for failure to pay maintenance and child support payments, the importance and dire necessity of future compliance. At the same time basic rights and procedural safeguards afforded him are preserved.

In view of the adjudicatory void and the impermissible breadth of the judgment and warrant of commitment entered and issued in case No. KCD 28606, namely, the failure to spell out the amount of the arrearages as of the date of the hearing in the judgment and warrant of commitment, and the imposition of probation, the judgment is reversed and the warrant of commitment is quashed. Since the proponent has conceded that the husband paid all arrearages which prompted initiation of the contempt proceeding, thereby purging himself of contempt with respect thereto, remanding the case to the trial court for further proceedings would serve no purpose.

The decree in the case designated in this court as No. KCD 27751 is affirmed; the writ of habeas corpus issued by this court in the case herein designated as No. KCD 28396 is quashed for having been improvidently issued and the husband is released from his personal recognizance and the same is dissolved; the judgment in the case designated in this court as No. KCD 28606 is reversed and the husband is released from all present or future imprisonment thereunder and discharged from the erroneously imposed probation.

All concur.


source: Caselaw Access Project

author: DIXON, Presiding Judge.

license: Public Domain

text:
    Virginia F. BUTCHER, Petitioner-Respondent, v. Robert W. BUTCHER, Respondent-Appellant.
    No. KCD27426.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Motion for Rehearing and/or Transfer Denied Nov. 4, 1976.
    Application to Transfer Denied Jan. 10, 1977.

      Lewis A. Dysart, David B. Dysart, Kansas City, for respondent-appellant.
    Allan R. Browne, Kansas City, for petitioner-respondent.
    Before DIXON, P. J., and SWOFFORD and WASSERSTROM, JJ.
   DIXON, Presiding Judge.

Petitioner, Virginia Butcher, filed suit for dissolution of her 1949 marriage to the respondent, Robert W. Butcher. The court decreed the dissolution, granted the wife care and custody of a minor child, ordered child support of $400 per month and divided the property determined to be marital property, granted the wife maintenance of $1,000 per month and additional attorney fees of $7,710. The husband has filed an appeal challenging the division of marital property, the award of maintenance, the award of child support, and the attorney fees as well as one item of trial evidence.

This hotly disputed proceeding generated over 700 pages of transcript and the memorandum opinion and decree of the trial court covers thirty transcript pages. To summarize the evidence produced in any detail is unnecessary. A summary statement of the facts sufficient to provide a background for the discussion of the issues actually raised will be sufficient with additional reference to the specific facts in connection with the points raised.

Robert Butcher and Virginia Butcher were married in 1949 immediately prior to his admission to medical school and following their joint graduation from the University of Missouri. At trial, the parties were 48 years of age. There were two children born of the marriage, a 24-year-old son who is still a student but married, and a 13-year-old son, a minor who was in the custody of the wife at the time of trial. The husband began practicing medicine in 1954 and his wife, although trained as a teacher, has not taught since his entry into the active practice of medicine. For seven or eight years during the marriage, the wife cared for some of the bookkeeping of the medical practice and the family’s personal affairs. There was evidence that the husband had been assisted in his medical career both upon his admission to medical school and during his early practice by his father-in-law who is also a physician. The wife had been injured in a skiing accident about five years prior to trial and continues to have pain in her back and was undergoing some variety of psychiatric treatment at trial. During the time that the husband had been actively practicing medicine, the wife had been a housewife, other than her part-time assistance in the matter of keeping books. The husband’s medical practice is incorporated as a wholly owned corporation. His current gross salary from the corporation was shown as $75,000 per year and additional income was received from stocks, bonds and interest of approximately $10,000 per year. His salary from the corporation had been higher as is evidenced by his 1972 tax return which showed his salary income as $90,000. The husband testified that he had contemplated separation a few years prior to the actual separation, because he had been dissatisfied with his wife because she was domineering and had an ungovernable temper, and he claimed an interest in a different life style. The husband left in November of 1972, and the wife stated that he told her he was leaving because he wanted to live his own life. She also testified that upon his return a few days later for the purpose of getting clothes, he told her that he was going with Mrs. Heerman, his office girl. The husband denied that evidence. A great deal of evidence was offered concerning the relationship between the husband and Mrs. Heerman, and while there was no evidence that they had anything more than an employer-employee relationship before the separation, there was evidence of a more personal attachment between the two following the separation. The husband and Mrs. Heerman traveled to Vail, Las Vegas and Europe together. The husband admitted they occupied the same room, but claimed they used separate beds. There was evidence that Mrs. Heerman and the husband cooked and ate meals together m the husband’s apartment and that Mrs. Heerman listed her telephone directory address and phone number at the address of the husband.

The record evidence concerning the marital assets was conflicting, the wife estimating the value of those assets to be $1,796,-506; the husband estimated the value to be $1,175,919. The husband estimated his monthly expenses to be approximately $4,000, and the wife estimated the monthly living expenses of the son at $396 with additional expense of $2,000 for tuition and some miscellaneous expenses for clothing and other items. The wife estimated her expenses at $2,918 per month with annual payments for taxes, charities and gifts of $3,900 additionally required. The wife’s only independent source of income was approximately $200 a year from some stock in her possession. There was evidence of a trust with a principal of $27,000 which was for the benefit of the minor son under a gift naming the wife as trustee. The dissolution of the marriage is not in issue.

Before adverting to the specific points of error asserted by the husband, the scope of our review needs definition. The thrust of husband’s complaints, although couched in language suggestive of errors of law, in reality also suggests a review of the evidence.

During the oral argument, the court referred counsel to the en banc decision of the Supreme Court in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), which enunciated the standard of review of court-tried cases under Rule 73.01 in the following language:

“Accordingly, appellate ‘review . as in suits of an equitable nature,’ as found in Rule 73.01, is construed to mean that the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Appellate courts should exercise the power to set aside a decree or judgment on the ground that it is ‘against the weight of the evidence’ with caution and with a firm belief that the decree or judgment is wrong. The use of the words de novo and clearly erroneous is no longer appropriate in appellate review of cases under Rule 73.01.” (l.c. 32.)

The standard of review set forth in Murphy v. Carron, supra, governs this court’s review. Because the decision in that case was handed down after briefing was complete in this case, the parties were permitted to file supplemental briefs addressed to the impact of Murphy v. Carron on the issues in this case, and these briefs have been considered in the determination of this appeal.

The husband first complains that the award of maintenance to the wife was improper because she has sufficient property after the decree to support herself, and there is no impediment to her employment. This claim of error is supported by a double barrelled argument that Section 452.335 RSMo 1969 requires as a predicate to an allowance of maintenance “specific” findings on lack of sufficient property as well as inability to be employed, and none were made nor, as husband asserts, could such findings be made upon the record in the case. The statute has no explicit provision requiring “specific” findings.

No case law is cited by the husband holding that the court was required to make “specific” findings on the necessary statutory elements before decreeing maintenance. No such authority exists, and a holding by this court that such “specific” findings are required in a divorce proceeding would create much mischief as well as fly in the face of established principle in court-tried cases. Many divorce decrees simply award maintenance or other relief ancillary to a dissolution, and no findings are made. These decrees are in reliance upon the rule and the statute which imply findings of fact necessary to support the decree.

To hold that the legislature intended by the enactment of Section 452.335 RSMo 1969 to repeal by implication the statutory rule making and decisional authority respecting the construction of court decrees is already foreclosed by the opinion of this court in Stark v. Stark, 539 S.W.2d 779 (Mo.App.1976) in which the exact contention here made was ruled in the following language:

“While we exhort the trial bench, as an aid to appellate review, to explain the facts upon which the adjudication directed by § 452.330(1) rests, Rule 73.01(d) [then in effect] and current Rule 73.-01(b)(2) impose no duty for findings of fact or conclusions of law in the absence of specific request by counsel. In that event, all fact issues are considered found in accordance with the result reached by the court. Noland v. Noland, 527 S.W.2d 696, 698[1] (Mo.App.1975). Nor can the prescription of § 452.330 that the court consider all relevant factors in the allocation of marital property be understood to imply a requirement — even in the absence of request — that a judge give a statement of reasons for the adjudication. The power of the supreme court to establish rules of practice and procedure is conferred by constitution. A rule so promulgated may be annulled or amended by the Legislature only by an enactment limited to that purpose. Article 5, § 5, Missouri Constitution of 1945. It is not the design of § 452.330 to amend or annul Rule 73.01.”

The second stage of the argument is, of course, a claim that the findings implied by the award are either made without any substantial evidence or against the weight of the evidence under the standards announced by Murphy v. Carron, supra.

Husband argues that the allocation of marital property to plaintiff of property valued by the trial court of $608,801 less the residence debt of $53,898 would leave her net assets of $554,903. The husband claims that approximately $467,801 of the value of assets set off to the wife constitutes income producing property which will produce, according to the husband, “income in excess of $37,000 per year utilizing a conservative return of 8%.” Husband’s argument ignores the actual income from the property set off to the wife which the wife s brief nets after taxes at $1,621.90 per month; but, more importantly, it is clear that the trial court was not convinced that the values assigned to the assets set off to the husband based primarily upon purchase price rather than present valuations were accurate. For instance, the farm property consisted of a 340-acre farm in Platte County Missouri. The wife claimed it was worth $340,000; and the husband said it was worth $136,000, the parties agreeing that the mortgage debt was $65,000. In evidence was the fact the husband listed it for sale at $350,000. The court expressed dissatisfaction with the evidence as to the farm value, but accepted the husband’s valuation which is certainly conservative considering the purchase price of $111,000 and the improvements that have been made since the purchase. The parties also disagreed violently with respect to deferred compensation plans established by the husband for his benefit and the value of his professional corporation as well as the husband’s interests in real estate partnerships owning land in the vicinity of the Kansas City International Airport valued by the court upon the basis of the husband’s investment in those partnerships. The language of the trial court in making the finding with respect to these values is as follows, “Again, although the court seriously doubts that the amounts actually invested constitute a reasonable measure of the value of these assets petitioner, . offered no evidence upon which the court could base a different result.” It was the wife’s position throughout the trial that the assets which were finally determined by the court to be the marital assets were not a full and complete disclosure of the assets acquired during the marriage, the wife continuing to assert that the husband had hoarded cash from a variety of sources and had secreted this property to prevent a division. The trial court quite properly upon the record presented found that no basis existed for charging the husband with such resources or directing payment or division, but the court clearly from its written opinion and order had some doubt as to the accuracy of the disclosure by the husband and certainly the record reflects a basis for such doubt.

In sum, the trial court’s division of the property reflects a division of property that places in the hands of the wife properties which have specific known values and a fixed earning capacity while the husband received properties subject to gain and increased income for which he was charged in the division with no more than the amount he himself was willing to say was the present value. In such circumstances, it is not for this court to say that the trial court abused its discretion in making an award of maintenance to the wife of $1,000 a month which, together with the reasonable income which might be achieved upon the property set aside to her, would still leave her income in an area close to her needs based upon the standard of living which had been established during the marriage.

The husband also includes in his argument a complaint that the trial court did not consider the future income to be derived by the wife from a trust of real property established by her husband and herself in which his medical property is located. This trust presently provides no income for the wife, but on the death of the husband’s mother, the property will revert to the wife. The award of maintenance is, of course, reviewable and if, in the future, the property referred to provides substantial income for the wife, the trial court may, upon appropriate motion, reexamine the situation of the parties and make an appropriate adjustment in the awarded maintenance. It would be purely speculative to consider when such income might be available to the wife. The income potential of the particular real estate is apparently based upon the husband’s continuing to pay rent as the principal tenant of the property. To speculate upon his continued occupancy to some future date when the wife may receive the income would be speculation upon speculation.

Husband also claims that the wife is capable of earning a portion of her support, baldly asserting there is no evidence in the record that she was unable to obtain employment. This ignores the evidence of her physical disability as well as age and apparent need for supervision of the 13-year-old boy in her custody. This argument is amplified by asserting that an award of maintenance in this case amounts to a construction of the “appropriate employment” language of Section 452.335 as applying “only to the poor.”

Cited is Shilkett v. Shilkett, 285 S.W.2d 67 (Mo.App.1955) which relied upon Schwent v. Schwent, 209 S.W.2d 546 (Mo.App.1948). In Shilkett, the court stated that “a divorced wife, who is capable of assisting herself, has no right to insist that her husband maintain her in idleness and luxury, simply because he has been adjudged the guilty party.” However, the court in Schwent, upon which Shilkett relied, said that the wife should be maintained in the station of life and style which the husband’s social standing and pecuniary faculties entitle her to.

The argument clearly overlooks the husband’s acknowledged earning capacity and retention, of the marital property most likely to appreciate, as well as the settled rule of law in this State that “need” does not refer to the bare necessities of life, but is related to the standard of living of the parties during the marriage.

Husband next makes a five-pronged attack upon the computation of value and the division of the marital property.

The first issue raised is the claim that the trial court failed to take into account the tax liability of the husband. That the court was aware of the tax implications is clear. The memorandum opinion specifically states that they are not being considered in the determinations of value made by the trial court. That is not to say that the trial court did not consider them in making the division of the property. In fact, husband points to the trial court order overruling the post decree motions to assert the implicit basis for his argument that the trial court intended a roughly equal division of assets. The specific language he refers to is a portion of the ruling referring to the trial court’s valuation. That same order, however, in exact and specific terms indicates not only that the trial court considered the issue of the tax liability but also took it into account in making the division of the property.

“In the year 1973, respondent realized a substantial capital gain upon the liquidation of one of the airport property ventures. Taxes due and payable on this income in this and subsequent years amount to approximately $100,000. Respondent suggests that the amount of cash set over to petitioner should be reduced by one-half of this tax obligation. It should first be noted that no order of this Court can affect collection procedures of the Internal Revenue Service or the State Department of Revenue who, in the case of joint tax returns, may look to husband or wife or both for payment of the tax. The fault in respondent’s approach, however, lies in the assumption that the Court intended to accomplish an equal division of marital assets. Such was not the plan although, as was observed previously, a roughly equal division resulted from the economic factors dictated by the character of the assets. The Court did, however, recognize the immediate call upon respondent’s resources for funds to meet the tax payment due April 15,1974. It was precisely for this reason that the Court set over to respondent from the marital assets the sum of $56,626 in cash to pay his taxes and such other marital debts as were then currently due.”

Husband next asserts that the value of the medical building held in trust should be included in marital property. In colloquy between the court and counsel, it appears that the husband and wife joined in a trust conveying real estate, which apparently is the medical building occupied by the husband, to a trustee irrevocably divesting themselves of any interest in the property except as provided in the trust. That trust provided for income to the mother of the husband during her lifetime, she being at the time of trial 83 or 84 years old. At one point, the transcript shows the income from the property to the mother-in-law, then to the wife — in another place, wife receives the fee interest. But, in any event, all her rights in the property arise by virtue of the transfer by both the husband and wife to the trust.

The argument is that the wife’s remainder interest and not the present value of the property is to be included. The husband’s proof was of present value, less his mother’s life estate. No mention is made of the possibility of the wife’s death prior to the death of the mother.

The husband states in his brief that the assigned value was agreed to by the parties. There was a stipulation that certain exhibits would be considered as part of the record in this case, and the value of the trust property was set forth in the husband’s exhibit as $125,000 with a residual value of $72,750, but there is no agreement by the wife that this represented the proper value of the real estate, nor is there anything discernable from the record concerning the value of her contingent interest when the uncertainty of her survival is considered. The husband argues that the property is not within any of the exceptions set forth in § 452.330 subsection 2, but this record certainly leaves an inference that the wife’s separate contingent remainder interest in this property, established by the trust instrument, constituted a gift to her of the extent of the husband’s interest in the property at the time the trust was created. In any event, it is clear from the court’s discussion that he was thoroughly apprised of the asset and its contingent value, and it cannot be said that he did not consider it in making the division of marital property.

The husband next asserts that the trial court overvalued the marital assets associated with the farm operation, contending that there was no evidence as to the value ascribed to the farm property consistent with the findings of the trial court of $80,000. The trial court’s memorandum opinion accepted the values ascribed to the farm equipment and cattle by the wife. In the memorandum opinion, the trial court set forth a value of $33,500 for farm equipment taken from the 1972 tax return of the parties, also a combine valued at $15,300, a bulldozer valued at $6,000, and a value for 33 cattle and 2 horses of $35,000. This totals $89,800, which is in excess of the trial court’s finding of value with respect to livestock and equipment, without regard to any value of improvements to the land itself. The wife’s value of the cattle seems high, and the husband’s seems low; it was for the trial court to resolve the issue, and it did so. The husband does not complain that the trial court accepted his value of the farm land at the figure of $136,000 instead of the wife’s value of $340,000. The trial court is entitled to deference on the issues as to value on this record, for he had only the assertions of the parties to guide him in the assessments of value.

Husband complains of the separation of the Beverly Lakes cabin from the farm property. The argument is based upon the testimony of the husband that the Beverly Lakes cabin was, in fact, utilized as the farm home. The Beverly Lakes cabin is apparently a recreational home, and the evidence is clear that the farm has a house trailer upon it for the use of the farm tenant; and there is no showing that there is such a physical connection between the Beverly Lakes cabin and the farm that their separation in the distribution of the marital property damages the value of either. This point seems to be more a matter of pique on the part of the husband that he did not receive this particular asset while receiving the farm than it is any claim of substance. The point is without merit.

The fifth and final attack on the valuation and division of the marital property is an assertion by the husband that it is “grossly unjust.” Buttressing that vague contention, the husband argues that if his values on the farm equipment are accepted and consideration is given to his tax liability and the value of the wife’s contingent interest in the property in trust, the award is “grossly unequal.” What has been said heretofore concerning the specific items is a sufficient factual answer to this contention. Husband also argues upon the basis of the remarks by the trial judge in overruling the post decree motions that the basis for what husband characterizes as an unequal award shows the trial court made the division of property upon the basis of “fault” of the husband. He further argues that the inclusion of “conduct” of the parties in Sections 452.335 and 452.330 RSMo 1969 is modified by the legislative admonition of “relevancy” also contained in those sections. Husband then argues that the only relevant conduct to be considered is that conduct which affects the marital property. To so hold would read into the statute a refinement that does not appear from the legislative language. Certainly with respect to Section 452.335, no such limitation was intended, for there the legislature refers only to the “conduct” of the party seeking the maintenance award. As to Section 452.330, the “conduct” of the parties is legislatively declared to be a “relevant” factor, and the intent could have only been to refer to general conduct of the parties during the marriage. In Conrad v. Bowers, 533 S.W.2d 614 (Mo.App.1975), the court specifically considered and rejected the same argument. The court said, l.c. 620:

“In view of our statute, it is clear that the act requires the trial court to consider, as one of the relevant factors in the division of marital property, the ‘conduct’ of the parties during the marriage. This means both good conduct and marital misconduct. It is not limited to conduct relating to financial misdeeds as urged by counsel for appellant.”

This view of the meaning to be attributed to the word “conduct” in Section 452.330 RSMo 1969 is supported by the legislative action in its enactment. For a discussion of that legislative action, see “No-Fault Divorce” by Judge Fred E. Sehoenlaub, Journal of Missouri Bar, November, 1971, p. 579, l.c. 583.

Husband’s complaint with respect to child support is that the trial court was in error in failing to consider the resources of the wife and the trust established for the benefit of the child in fixing the child support. Husband, without any evidentiary support, indicates that the income from the trust would be $2,100 a year at what the husband terms a conservative rate of return. Again, the record is skimpy. All that appears is the claim of the husband that the assets in the trust were worth $27,000. The trust instrument is not in evidence. It seems that the trust property consists of shares in a mutual fund, but that is not clear. Again, from colloquy and not from evidence, it appears that the trust is a simple declaration under the uniform gifts to minors law, Chapter 404 RSMo 1969. Under Section 404.040 of that act, the wife who was apparently the trustee is under no duty to provide support for the beneficiary and is specifically permitted to exercise discretion with respect to payment on behalf of the minor “with or without regard to the duty of himself or of any other person to support the minor or his ability to do so, and with or without regard to any other income or property of the minor which may be applicable or available for any such purpose.” Section 404.040(2) RSMo 1969.

The trial court clearly could not in considering the welfare of the child be sure that that income would be available to the minor whatever it may have been, and there is certainly no record evidence which gave the trial court any clear indication of the income received on an annual basis by the trust. In the circumstances, the trial court cannot be convicted of error in not reducing any appropriate child support upon such a tenuous basis. As to the husband’s argument that where both parties are equally capable of support, the trial court errs in awarding a child support payment, the argument again ignores the statutory admonition contained in Section 452.-340 RSMo 1969 which lists as the first factor to be considered the father’s primary responsibility for the support of his child. Husband also complains of the fact that approximately half of the child support award was for the purpose of maintaining the child in a private school; but again, the statute directs the trial court to consider the standard of living the child would have enjoyed had the marriage not been dissolved, and clearly, the circumstances of these parties prior to the divorce were such that the child’s attendance at a private school would not have been considered as unusual for persons of such means and earning capacity. Husband relies upon Williams v. Williams, 510 S.W.2d 452 (Mo. banc 1974), which is factually quite different from the instant case. He misconstrues the language of that case to say that the holding of Williams v. Williams is that where the resources of the parents are equal, an order of support against the father constitutes an abuse of discretion. It is apparent from a reading of Williams that the basis for decision in the Williams case was that the effect of the support order reversed in that case was to shift monies from two of the children for the benefit of the other two children. It simply has no application to a case such as this where the child support order involves only one child in a situation where the resources of the husband and his earning capacity are as great as they are in this case.

Husband finally complains of the trial court inclusion of an order requiring the husband to pay an additional attorney fee of approximately $7,000. The same argument has been recently advanced in this court in Vanet v. Vanet, 544 S.W.2d 236 (Mo.App.1976). No more needs saying than to quote the contention and the holding of the court in that case:

“The principal argument advanced by the husband appears to be that the wife was equally if not more financially able to pay her attorney than was the husband. Section 452.355, RSMo Supp.1973, herein applicable, states that the ‘. . . court after considering all relevant factors including the financial resources of both parties may order a party to pay a reasonable amount ... to the other party . . . for attorney’s fees
The ‘financial resources’ of a party referred to in Section 452.355, supra, or, as more basically expressed, the need of a party seeking attorney fees, is but one factor to consider in awarding such fees.” [Page 243].

Husband’s final point on this appeal is his claim that the trial court erred in admitting deposition testimony of the husband which was neither admissions nor impeachment. The complained of deposition testimony has been examined in the light of all the evidence offered in the case. A great deal of the testimony or, as the husband characterizes it, the statements of counsel in the form of questions addressed to the husband concerning his liaison with his office girl, do not constitute either admissions or matters of impeachment. All of the offending material came in in some other fashion during the trial of this case, and on the whole record, the reading of this deposition testimony does not constitute reversible error. Rule 84.13. Section 512.160 RSMo 1969. O’Keefe v. United Rys. Co. of St. Louis, 124 Mo.App. 613, 101 S.W. 1144 (1907).

The entire transcript has been reviewed to determine if a “firm belief” is engendered that the decree is wrong. That “firm belief” does not arise. The wife might have been better served with more evidence of value and less of fault. This court shares the skepticism of the trial court as to much of the evidence of value, but like the trial court, this court must take the record as the parties make it. From a welter of confusion and conflicting claims and opinions, the trial court made a distribution of the property of the parties and assigned the responsibility for the maintenance and support. There is no basis for this court to attempt to remake the decree.

Judgment affirmed.

All concur.


author: BILLINGS, Chief Judge.

text:
    Donald G. WELLS and Clara Wells, his wife, Plaintiffs-Respondents, v. A. W. ELDER, Defendant-Appellant.
    No. 10187.
    Missouri Court of Appeals, Springfield District.
    Nov. 23, 1976.
    Rehearing Denied Dec. 9, 1976.
    Ted M. Henson, Jr., Scott & Henson, Poplar Bluff, for plaintiffs-respondents.
    L. Michael Lorch, Robert M. Ramshur, Piedmont, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

In this court-tried ease for trespass on realty [§ 537.340, RSMo 1969] plaintiffs were awarded treble damages for timber defendant cut on land plaintiffs claimed to own. We reverse.

The location of the boundary line between plaintiffs’ land and an adjoining tract was the crucial issue in the case. Defendant had purchased the timber rights on the adjoining tract and cut trees to what had been pointed out by the owner as the boundary line between the two tracts.

Nearly two years after the timber was cut, plaintiffs caused a survey to be made of their 40-acre tract. This survey, made by the county surveyor, was received in evidence over defendant’s objection. According to the survey the defendant cut and removed some trees from plaintiffs’ land.

The survey, exhibit B, is before us. It commenced at a pile of stones that purport to mark the corner common to four sections. The surveyor said he located this corner “By old GLO information” he ordered from Rolla. The “GLO survey” was made in 1818, according to the witness.

Cross-examination of the surveyor revealed the following:

Q: Is there any evidence as to how long this pile of stones had been there?
A: Well not really, but it has been there I would say at least a year or two years.
Q: You mean this corner was set by somebody?
A: I said the stones had been there at least that long. I believe that corner was resurrected by Mr. Sam Smith.
Q: You think Sam Smith established that corner?
A: No I think he resurrected the corner.
Q: Is there something recorded in the Recorder’s office to show that?
A: Not here. There is a copy of a survey executed by Mr. Smith.
Q: Is that on record here in the Recorder’s office?
A: I don’t believe it is on record here. It is on record at Rolla.
Q: Mr. Smith’s survey is?
A: I am sure it is on microfilm.
Q: All right. Let me ask you this, you don’t know this?
A: No I don’t but I have seen a copy of the survey.
Q: What I am getting to, has this corner ever been reset or resurrected according to the statutes of the State of Missouri?
A: I have no evidence that it has ever been reset or resurrected according to the statutes. It very well could be the original.
Q: But you don’t know that it is?
A: I know the witness trees evidence is there and that is all.
Q: That is not what I asked you?
A: No I don’t think — I couldn’t say that it is sure enough the original.
You don t know who set it?
No that is true.
But that is the corner of Mr. Smith’s? (⅛
The Section Corner that Mr. Smith has used. He used it. <

Section 60.150, RSMo 1969, makes a proper survey prima facie evidence. The instant survey is deficient in that it fails to show it commenced at a corner established by the government, or if lost, re-established pursuant to the statutory method [Chapter 446, RSMo 1969]. “Evidence of a survey which is not definitely shown to have commenced from a corner established by the government or, if lost, re-established in accordance with statutes, is of no probative force.” Carroz v. Kaminiski, 467 S.W.2d 871, 872 (Mo. banc 1971); Burke v. Colley, 495 S.W.2d 699, 702 (Mo.App.1973) (emphasis added)..

The survey and the surveyor’s testimony relative thereto are of no probative force to delineate the boundary line between plaintiffs’ land and the tract where defendant had purchased the timber rights. Exhibit B was not tied to a government marker or legally re-established corner. The exhibit was based on assumptions and conclusions from documents which were not offered in evidence. “Even the testimony of a survey- or as to the location of boundary lines is not to be received unless the data from which such lines are run is produced and proved.” Barnhart v. Ripka, 297 S.W.2d 787, 792 (Mo.App.1956); Pioneer Cooperage Co. v. Bland, 228 Mo.App. 994, 75 S.W.2d 431 (1934).

To maintain this statutory action it was part of plaintiffs’ burden to present substantial evidence that defendant cut and removed trees from plaintiffs’ land. Since exhibit B and the surveyor’s testimony are of no probative value, there is no substantial evidence to support the judgment in favor of the plaintiffs.

The judgment of the trial court is reversed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Sidney N. DAVIS, Appellant, v. Wilma J. DAVIS, Respondent.
    No. 27628.
    Missouri Court of Appeals, Kansas City District.
    Nov. 29, 1976.

      J. Kirk Rahm, Hensley, Rahm & Rahm, Warrensburg, for appellant.
    Robert E. Harris, Warrensburg, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Dissolution of marriage proceeding. Trial court entered decree of dissolution. Husband has appealed from decree insofar as it divides property.

Sidney N. Davis and Wilma J. Davis were married June 23, 1957. On February 19, 1974, Sidney filed petition for dissolution of the marriage, stating that he was 46 years of age and his wife 52 and that they had separated on February 8,1974. No children were born to the marriage. Wilma filed an answer and cross-petition for dissolution. The cause was tried in August, 1974. Sidney’s evidence related the marital problems to Wilma’s excessive consumption of alcohol. Wilma’s evidence was designed to show indiscretion and infidelity on Sidney’s part with other women during the marriage. Because neither party here relies measurably upon the misconduct factor in arriving at the division of the marital property, there is no need to consider the evidence on this score in any detail.

The evidence pertinent to the issues here raised was as follows:

Sidney was president of the Knob Noster Oil Company, Incorporated. The corporation operated a retail gasoline service station in Knob Noster and owned a bulk plant from which deliveries and sales of gasoline, fuel oil and propane gas were made to residents of the area surrounding Knob Noster. Sidney actively ran the oil company operation. He drove the truck making deliveries to farmers, worked in the drive at the service station, did “anything that is to do around the service station,” and kept the books of the operation.

Sidney and his mother purchased the assets of the corporation in February, 1955, for $84,000. Shortly thereafter, the assets were transferred to the newly formed corporation. Sidney received 150 shares and his mother 50 shares. These were the outstanding shares at the time of the trial. $16,000 of the purchase price was paid to the sellers prior to the marriage of Sidney and Wilma. The final payment of $22,500 was made in 1965 from the proceeds of a loan secured by a deed of trust on farm land owned jointly by Sidney and his mother.

At the time of the trial, Sidney was receiving $6,500 per year for his services as president of the oil company. His earnings were deposited in the Bank of Knob Noster. Household expenses were paid from that account.

Wilma was a school teacher, having been so employed for 34 years. At the time of trial her annual salary was in excess of $11,000 per year and her take home pay $664 per month. She took no active part in the operation of the oil company. She was “listed” as vice-president and a member of the board of directors of the oil company from 1963 to 1974. She received $55 per month from an affiliated corporation, K. N. Wholesale Oil Company, Inc. Sidney and his mother were the sole stockholders in K. N., Sidney owning 37V2 shares and his mother I2V2 shares.

A family residence at 205 West Workman in Knob Noster was purchased in 1968. At the trial the house was valued at $35,000, subject to a deed of trust securing an outstanding indebtedness of $16,470.00. The parties also owned a vacant lot adjacent to the house, valued at $700.00. Payments on the house were made by Sidney from his income until the parties’ separation.

At the time of the marriage Sidney and his mother owned property on Grant Street in Knob Noster. After the marriage, Mrs. Davis conveyed her interest in the property to Sidney and Wilma. The property was sold for a net return of $13,000.00. Eventually $5,000 of that money was invested in United Utilities debentures in the names of Sidney and Wilma. Sidney also invested $1,000, plus $500 added by him, in 100 shares of the Gas Service Company. The remainder of the proceeds of the Grant Street property was used to improve the West Workman residential property.

According to Sidney, Wilma used her income for her clothes, “frilly” things, things for the house and investments. At the time of the marriage she had a 1955 Buick which was later sold. She also had $2,264.02 in a checking account which was later transferred to a joint account. When the petition was filed, there was a joint checking account in the parties’ names at the Sedalia Bank and Trust Company, with a balance of $4,787.03. Sidney made no deposits in that account. Wilma testified that, during the marriage, from her earnings as a teacher and from the proceeds of property inherited from her father, she had invested $18,000 in investment notes of Sedalia Industrial Loan and Investment Company, purchased 70 shares of Nuveen Bond Fund, valued at $7,000, and shares of Founders Mutual Fund, valued at $5,121.11. She also claimed to have purchased the United Utilities debentures and Gas Service stock, above referred to.

Wilma testified that four years previously she learned her school teaching had at that time earned her retirement benefits, payable at age 65, of $175 per month. She testified that one year earlier she had a mastectomy for a malignancy of one breast and that she feared the problem was recurring in her remaining breast. Her physician testified that an X-ray taken August 19, 1974 showed no evidence of metastasis.

At the time of the marriage, Sidney was a joint owner with his mother of a 399-acre farm. The farm was valued at $199,500, subject to a deed of trust to secure a $16,-040 debt. All income from the farm went to the mother. Sidney and his mother were also joint owners of residential property in Knob Noster, valued at $16,250, subject to a deed of trust to secure a $4,625 debt. His mother resided at the property.

The trial court’s decree respecting the property was as follows:

It set aside the farm and the mother’s residence as the property of Sidney and his mother, with Wilma having no interest in them.

It set aside to Wilma as her sole property the following:

Item Value
1972 Mercury automobile $ 2,600
90-day investment note of Sedalia Industrial Loan and Investment Company 10,000
5-year investment note of Sedalia Loan and Investment Company 8,000
Deposit in checking account, Sedalia Bank and Trust Company $ 4,787.08

It found the following property “marital property within the meaning of the statutes” and declared that each of the parties should be owners of a ½ interest as tenants in common:

Item Value
Residence, 205 West Workman $35,000
Less encumbrance 16,470 $18,530
Adjacent vacant lot 700
Household property 2,500
100 shares Gas Service stock 912.52
United Utilities Debentures 5,000
Founders Mutual Fund Shares 5,121.11
70 units Nuveen Tax Exempt Bond Funds 7,000
16 shares Guaranty Corporation 70
Dividends received by Sidney since separation 550
3 shares Knob Noster Community and Development Corporation 54

The court further found that Wilma had a “marital interest” in the assets of Knob Noster Oil Company to the extent of $40,-304.50, which was set apart to her “as her marital interest in said corporation.” (The precise basis for this computation does not appear. Witness for Wilma testified to a value of the assets of the corporation of from some $132,000 to $152,000. The extent of liabilities was not shown. There was evidence of indebtedness to Sidney and his mother of approximately $40,000 and to the La Monte Community Bank of some $20,000.)

The decree also relieved Wilma of liability on any obligations with which she had joined her husband, except for the indebtedness on the residence.

On this appeal, Sidney attacks the allowance of a marital interest in the assets of the corporation and claims the over-all division of the property gives Wilma a disproportionate share of the marital property. He also attacks the decree insofar as it makes the parties owners of property as tenants in common.

Appellant’s first contention is that the court erred in allowing Wilma a marital interest in the assets of Knob Noster Oil Company, Incorporated. He contends that his interest in that corporation was in the ownership of ¾ of its outstanding stock which was owned by him at the time of the marriage, and that, therefore, his interest in that corporation was not marital property-

Section 452.330 1., RSMo 1975 Supp., provides, in part:

“In a proceeding for * * * dissolution of the marriage * * * the court shall set apart to each spouse his property and shall divide the marital property * * * tf

Section 452.330 2. provides:

“For purposes of sections 452.300 to 452.-415 only, ‘marital property’ means all property acquired by either spouse subsequent to the marriage except:

“(1) Property acquired by gift, bequest, devise or descent;

“(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;

“(3) Property acquired by a spouse after a decree of legal separation;

“(4) Property excluded by valid agreement of the parties; and

“(5) The increase in value of property acquired prior to the marriage.”

“ * * * For purposes of the division of marital property under § 452.330, all property acquired by a spouse prior to the marriage and which remains titled in that spouse after marriage is, in the absence of clear intention to contribute that property to the community or to the other spouse, the separate property of that spouse and will not be regarded as marital property. Conrad v. Bowers, 533 S.W.2d 614, 624[20] (Mo.App.1975).” Stark v. Stark, 539 S.W.2d 779, 782[2 — 4] (Mo.App.1976).

The respondent here does not question that the appellant acquired his stock in the oil company prior to the marriage and does not suggest that the title to the stock was changed subsequent to the marriage. Respondent contends that the evidence showed that the parties, subsequent to the marriage, “ignored the corporate veil or entity” and that this was “conduct of the parties during the marriage” which under § 452.330 1. (4) was a circumstance to be considered by the court in dividing marital property. Reliance upon § 452.330 1. (4) is misplaced because that provision relates to consideration of “good conduct and marital misconduct” of the parties during the marriage (Conrad v. Bowers, 533 S.W.2d 614, 620[6] (Mo.App.1975)) and not to their dealings with respect to property involved in the marriage.

The conduct of the parties with respect to property may evidence the clear intention that separate property be contributed to the community or the other spouse. Stark v. Stark, supra. Here respondent points to the fact that she became a director and vice-president of the corporation. However, there was no evidence that in order to hold such positions she was required to have an interest as a shareholder in the corporation. See § 351.310, RSMo 1969. She also points to the fact that she signed notes secured by deeds of trust the proceeds of which were used in the corporate operations. These obligations were secured by the farm and the residence of the mother, set aside by the court as the separate property of appellant. The fact that respondent joined in the transactions does not evidence an intention to confer upon her an interest in the corporate stock owned by appellant. See Stark v. Stark, supra. The time of payment of a major part of the purchase price of the corporate assets, i. e., after the marriage, would not alter the status of the property. Stark v. Stark, supra; Cain v. Cain, 536 S.W.2d 866, 870-871 (Mo.App.1976).

Respondent also points out that she was a guarantor of the corporate obligation to the La Monte Community Bank. That fact, standing alone, is not sufficient to evidence the necessary intention on the part of appellant that the corporate stock become community property. The circumstances of the guaranty agreement do not appear. Respondent did not testify concerning the agreement. Nor did she contradict appellant’s testimony that respondent refused to discuss the business with him, that she repeatedly told appellant that he was in something that was no good, that she wanted no part of the business and wished she had never heard of the company.

The evidence showed that the appellant’s interest in the Knob Noster Oil Company, Incorporated, was acquired before his marriage to respondent. There was no evidence to show that the status of that property changed during the marriage and the trial court should not have considered it marital property and should not have allotted respondent an interest in the corporate assets.

Appellant’s objection to the decree insofar as it made the parties tenants in common of the major portion of the marital property is meritorious.

“The new marriage dissolution law empowers the court dissolving a marriage to divide the property of the spouses, a new and significant power for Missouri courts. No longer will there be a race to the courthouse to file partition actions after a divorce; no longer will intransigent spouses have to see their property sold at the courthouse door. It is expected that the unsatisfactory half-remedy of partition will no longer be useful to divorced parties.” Fowler and Krauskopf, “The Divorce Reform Act — Property Provisions,” 29 Mo.Bar Journal 508 (1973).

Given the broad power of the court to accomplish the division of the marital property upon dissolution (see Claunch v. Claunch, 525 S.W.2d 788 (Mo.App.1976)), a division which leaves the parties tenants in common of personal property susceptible to division in kind should be avoided in the interest of preventing the unnecessary extension of disputes and ill feeling. Although resort to such device with respect to real estate probably should not be absolutely precluded, again a tenancy in common solution should be reserved for the unusual situation where the economics involved call for such a solution.

No such situation exists here. Although the trial court is entrusted with wide discretion in dividing marital property, proper exercise of discretion involves a division except in rare instances. In the circumstances of this case, the common ownership decree of the trial court should not be permitted to stand.

Consideration must be given appellant’s further contention that the trial court’s decree awarded respondent as her sole property, property which was marital property and that such error resulted in respondent’s receipt of a disproportionate amount of the marital property.

The trial court did set aside to respondent as her “sole and separate property” the 1972 Mercury automobile, $18,000 certificates in Sedaba Loan and Investment Company and the money in the cheeking account as of August 27,1974. All of these items were acquired during the marriage. $7,000 of the Loan and Investment certificates was traceable to an inheritance by Wilma from her father during the marriage. However, upon the investment of the $7,000, Sidney was named a joint owner of the certificate, so that the exceptions in subparagraphs (1) and (2) of § 452.330 2. are not applicable. Conrad v. Bowers, supra. The court erroneously set aside these items to Wilma as her separate property. The fact that the property was acquired with Wilma's inheritance and earnings would be a factor to be considered in the division of them and the other marital property, but it did not cause such property to be Wilma’s sole and separate property.

This court would have the authority to direct the distribution anew of the marital property. However, practical considerations render such action unwise in this case. The matter must be remanded to the trial court for reconsideration in the light of this opinion and for a division of the marital property under the guidelines set forth in § 452.330 1. Appellant has urged that this court direct an approximately equal distribution of the marital property. This request is refused. Section 452.330 1. does not require such a distribution.

The trial court will properly assess the relevant considerations and this court will not attempt to dictate the result which will be reached,

Reversed and remanded.

All concur.