## Facts

- James E. Tucker (husband) and Donna M. Tucker (wife) married in June 1981 and separated in July 1988; they had one child, Nichole.
- In spring 1988, husband’s sister was dying of terminal cancer. Wife spent substantial time at the sister’s home helping the family. The sister died in late May 1988.
- Husband came to believe wife began an affair with the sister’s widower (husband’s brother-in-law) in 1988.
- In July 1988, wife went to Texas to help the family of husband’s brother; the widower also traveled to Texas and later returned to Missouri with wife.
- Husband received reports from Texas suggesting wife and the widower were involved. Husband confronted wife, and he testified wife said she preferred the widower over him. Husband filed for dissolution the next day.
- Husband presented witnesses who said they observed wife and the widower hugging and kissing passionately before the separation. Wife denied a sexual relationship and characterized any physical contact as consoling behavior after the sister’s death.
- The marital estate was modest. The principal asset was about $12,000 in equity in the marital home; husband also had a pension/retirement interest estimated at roughly $4,000–$5,000, along with minor assets such as vehicles with minimal equity, small bank accounts, and household goods.
- The trial court found a sexual relationship existed between wife and the widower and found wife guilty of marital misconduct that directly contributed to the dissolution.
- The decree awarded husband virtually all marital property, including all home equity, husband’s pension/retirement interests, and even a washing machine the parties agreed wife inherited from her grandmother; wife received mainly personal effects and minor items in her possession.
- Wife appealed the property division and also challenged the custody and visitation determinations.

## Issues

1. Whether the trial court abused its discretion by awarding husband virtually all marital property—effectively as a sanction for wife’s marital misconduct—given the small marital estate and the parties’ contributions.
2. Whether the trial court abused its discretion in awarding custody to husband and setting wife’s visitation.

## Decision

- The Missouri Court of Appeals held the property division was unjustly one-sided and functioned as punishment for marital misconduct rather than an equitable distribution.
- The court modified the decree to award wife $6,000 from the home equity, payable over six years with interest, leaving the remainder of the distribution intact.
- The court noted the evidence regarding husband’s pension/retirement plan did not establish it met the requirements to be treated as divisible marital property (citing Missouri authority on pension division).
- The custody and visitation provisions were affirmed because the record did not show an abuse of discretion.
- Disposition: affirmed as modified.

## Legal Principles

- Missouri courts may consider marital misconduct as one factor in dividing marital property, but property division must remain equitable and not serve primarily as punishment.
- An extreme disparity in a modest marital estate generally cannot be justified solely by misconduct unless the misconduct caused extraordinary financial burdens or other circumstances that make a sharply unequal award fair.
- Appellate review of dissolution decrees is deferential: a property division is reversed or modified only for abuse of discretion, and custody/visitation rulings are affirmed unless clearly against the child’s best interests as shown by the record.
- A spouse seeking division of pension or retirement benefits must present evidence sufficient to show the interest is marital property subject to division under Missouri law.

## Conclusion

*Tucker v. Tucker* holds that while a court may weigh marital misconduct in distributing marital assets, it may not use misconduct to justify an overwhelmingly unequal, punitive award in a modest estate; the appellate court corrected the inequity by granting the wife $6,000 of the home equity payable over time, while leaving the trial court’s custody and visitation orders in place.


Tucker v. Tucker, 806 S.W.2d 758 (1991)