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In re Marriage of Raymond J. Tullier3/17/1999
this Judge-tried case, credibility of the witnesses and the weight to be given their testimony was a matter for the trial court, which was free to believe none, part, or all of the testimony of any witness. Herbert v. Harl, 757 S.W.2d 585, 587 (Mo. banc 1988).
Furthermore, Raymond ignores the evidence of his own misconduct. Mrs. Dunn -- Raymond's witness -- testified that "over 21 years, [Elizabeth's] been telling me all the things [Raymond's] been doing to her." Mrs. Dunn added that when she asked Elizabeth why she did not leave Raymond, Elizabeth replied: "Well, if I leave him, he's going to kill me. . . . here's no place in the United States I can go to that he won't find me." Asked specifically what Raymond had done to Elizabeth, Mrs. Dunn replied: " he told me that he raped her."
Mrs. Dunn's testimony, although hearsay, was received without objection. Hearsay, if not objected to, may be considered along with other evidence. Rooney v. Lloyd Metal Products Co., 458 S.W.2d 561, 566 (Mo. 1970); Thorpe v. Meier, 755 S.W.2d 683, 691 (Mo.App. S.D. 1988). The probative worth and value of such evidence is for the trier of the facts. Canania v. Director of Revenue, 918 S.W.2d 310, 313 n. 2 (Mo.App. S.D. 1996); Thorpe, 755 S.W.2d at 691. The trial court's judgment recites that the court, in dividing the marital property, considered, inter alia, the conduct of the parties during the marriage. Inasmuch as the trial court divided the marital property equally, this court infers the trial court concluded both parties misbehaved and neither's misdeeds, measured against the other's, were excessive enough to warrant an unequal division of marital property.
As to Raymond's contention that he is a "disabled spouse" (and therefore entitled to a larger share of marital property than Elizabeth), this court notes that Raymond's "SSI" is $825 per month; his CIGNA "disability policy" pays him $434 per month. He thus has monthly income of at least $1,259, which amounts to over $15,000 per year. As reported earlier in this opinion, there was evidence Raymond was earning approximately $16,000 per year at the time he was injured. It thus appears his annual income dropped by $1,000 after the injury . While one might assume Raymond's standard of living declined after his injury, his testimony refuted that notion:
"Q. . . . You were living with your wife after the accident until the time you separated in the spring or summer of '97, right?"
"A. Right."
"Q. And you all didn't live quite as well as before when you were earning a wage; is that correct?"
"A. Oh, no. That's--That's wrong. We lived better."
"Q. You lived better?"
"A. Yes, sir."
Furthermore, marital property awarded Raymond by the trial court included a 49-acre tract in Stone County on which a house is situated. Raymond valued that asset at $163,000. This court infers Raymond was residing there at time of trial.
The trial court also awarded Raymond two motor vehicles, a boat and trailer, a Suzuki "four-wheeler," furniture, guns, tools, housewares and, as noted earlier, a share of the Merrill Lynch account.
It appears Raymond will have perpetual income from "SSI," CIGNA and his share of the Merrill Lynch account. Thus, although apparently unemployable, Raymond will continue to receive almost the same income after the dissolution as before and -- unlike before -- he will be the only one living off it.
A trial court is vested with considerable discretion in dividing marital property; an appellate court will interfere only if the division is so heavily and unduly weighted in favor of one party as to amount t
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