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Tambone v. Tambone11/16/2004
Opinion Vote: REVERSED AND REMANDED.
Crandall, Jr., J., and Ahrens, J., concur.
Opinion:
Tracy L. Tambone (hereinafter, "Wife") and Gregorio Tambone (hereinafter, "Husband") were married on May 28, 1992. During their marriage, twin children were born. Wife and Husband separated in December 2001. Wife and Husband stipulated that conduct of both parties was not at issue and Wife would receive custody of their minor children. Hence, the only issues for the trial court to determine were division of the marital estate, and awards of maintenance and child support . After a three-day trial, the trial court issued its judgment dissolving their marriage on September 18, 2003. This appeal and cross-appeal follow, raising issues of property division and child support. We reverse and remand.
Provisions in a decree of dissolution will be affirmed unless there is no substantial evidence to support them, they are against the weight of the evidence, they erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). We view the evidence and all permissible inferences therefrom in the light most favorable to the trial court's decree, and we disregard all contrary evidence and inferences. Mehra, 819 S.W.2d at 353. Further, we defer to the trial court's determination of the credibility of the witnesses. In re Marriage of Novak, 83 S.W.3d 597, 600 (Mo. App. E.D. 2002).
In his first point on appeal, Husband claims the trial court erred in its division of the marital property for three reasons. He alleges the trial court failed in: (1) dividing the marital property in a just and equitable manner; (2) assigning a negative value to a portion of the debt assigned to him; and (3) including the full amount of debt assigned to him in its calculation of marital property on the distribution schedule. Husband believes this creates an extremely disproportionate division of marital property.
"The trial court is vested with considerable discretion in dividing marital property and an appellate court will interfere only if the division is so heavily weighted in favor of one party as to amount to an abuse of discretion." In re Marriage of Duvall, 67 S.W.3d 736, 740 (Mo. App. E.D. 2002). The trial court abuses its discretion when its ruling is clearly against the logic of the circumstances of the case before it and is so arbitrary and unreasonable as to shock this Court's sense of justice. Schroeder v. Schroeder, 59 S.W.3d 607, 609 (Mo. App. W.D. 2001). Section 452.330.1 RSMo (2000) sets forth nonexclusive factors for the trial court to consider in its division of marital property: (1) the economic circumstances of both parties at the time of the property division and the desirability of the custodial parent to be awarded the family home; (2) the contribution of both parties to the accumulation of marital property; (3) the value of each party's separate property; (4) conduct of the parties during the marriage; and (5) the custodial arrangements for the minor children.
The trial court took each of these factors into consideration in its judgment, including specifically, as per their pre-trial stipulations, not making a determination as to the conduct of Husband and Wife. Husband, however, complains the trial court erred in dividing the debt from the home equity loan and their tax refund check.
Wife concedes $23,000 of the home equity loan was characterized as a positive distribution to Husband when it should have been a debt attributable to her. Accordingly, upon remand, the trial court is directed to allocate this loan as a debt to Wife in its re-division of their mar
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