Kelly v. Kelly
2011 Mo. App. LEXIS 646
| Mo. Ct. App. | 2011Background
- Husband and Wife married July 21, 2001; separated September 28, 2008 after Wife moved out.
- Marital home purchased in Liberty for $219,000; mortgage balance $205,850 at trial; value disputed ($195k vs $250k).
- Husband testified to approximately $4,800 monthly pension and about $50,000 in a Thrift Savings Plan; Wife earns about $3,176 monthly plus benefits.
- Circuit Court final decree (Feb. 17, 2010) ordered the home sold with 60/40 net proceeds in Husband/Wife favor, set listing at $240,000 with $10,000 reductions every 60 days to $210,000, no end date for sale.
- Court did not require Wife to contribute to Husband’s $30,000 upkeep or to maintenance costs, and ordered Husband to pay $1,000 of Wife’s attorney fees.
- Court classified 11.5% of Husband’s HUD pension and 11.5% of his Thrift Savings Plan as marital, divided the marital portions equally; no spousal maintenance awarded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Deadline for sale of marital home | Kelly: no deadline; needs definite sale timeline. | Kelly: decree provides gradual price reductions; sale should occur. | Decree must specify a time period for final sale and appropriate sale conditions. |
| Classification of pension and thrift plan as marital | Kelly: portion non-marital; should be non-marital under source of funds. | Court properly deemed marital portion and divided it. | Court's classification of 11.5% marital in both assets upheld; division approved. |
| Costs and attorney fees allocation | Kept to pretrial upkeep costs; seeks different fee allocation. | Award of $1,000 deemed reasonable given financials. | No reversible error; trial court’s attorney-fee award affirmed. |
Key Cases Cited
- Thomas v. Thomas, 76 S.W.3d 295 (Mo.App. W.D.2002) (remanded for time-bound sale of home; incentives to cooperate)
- Bussen v. Bussen, 273 S.W.3d 90 (Mo.App. S.D.2008) (remanded to designate sale time period and conditions)
- Isakson v. Isakson, 277 S.W.3d 784 (Mo.App. S.D.2009) (similar issue on sale timing)
- Doss v. Doss, 822 S.W.2d 427 (Mo. banc 1992) (pension assets marital if accrued during marriage)
- Taylor v. Taylor, 12 S.W.3d 340 (Mo.App. W.D.2000) (source of funds rule for pension characterization)
- Dunnagan v. Dunnagan, 239 S.W.3d 181 (Mo.App. S.D.2007) (burden to prove non-marital property)
- Hall v. Hall, 118 S.W.3d 252 (Mo.App. W.D.2003) (pre-marriage funds not marital; non-marital portion)
- Davis v. Davis, 107 S.W.3d 425 (Mo.App. E.D.2003) (retirement benefits as marital property)
- In re Marriage of Cranor, 78 S.W.3d 150 (Mo.App. S.D.2002) (retirement funds as marital property)
- In re Marriage of Box, 968 S.W.2d 161 (Mo.App. S.D.1998) (retirement benefits as marital property)