Barbieri v. Barbieri

Decision Date31 August 2021
Docket NumberNo. ED 108457,ED 108457
Citation633 S.W.3d 419
Parties Michael J. BARBIERI, Respondent/Cross Appellant, v. Jessica A. BARBIERI, Appellant.
CourtMissouri Court of Appeals

FOR APPELLANT: Daniel R. Schramm, 121 Chesterfield Business Pkwy, Chesterfield, Missouri 63005.

FOR RESPONDENT: Susan M. Hais, Elliot I. Goldberger, 222 S. Central Ave., Suite 600, Clayton, Missouri 63105.

Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J.

James M. Dowd, Judge

Appellant Jessica A. Barbieri (Wife) and Respondent/Cross-Appellant Michael J. Barbieri (Husband) both appeal the trial court's July 10, 2019 judgment dissolving their marriage. In a combined 13 points of error, the parties claim that the trial court erred in numerous respects including in connection with the division of the marital estate, the amount awarded to Wife in retroactive child support, retroactive maintenance, and monthly maintenance, and the amount of marital property both parties squandered during their ill-fated marriage. The parties also dispute whether or not the court had lost jurisdiction before it issued its purported amended judgment. We affirm in part and reverse and remand in part.

Background

The parties were married on August 4, 1996, and had one child (Daughter) who is now 21 years old. In 1989, Husband had started a private investigation firm, PDI Investigations, Inc., (PDI) and in June 1996, he transferred ownership of the business to Wife purportedly as an early wedding present. During the marriage, the parties ran PDI together, Wife as the owner-manager, and Husband as an employee-investigator. In July 2012, the parties separated. On August 11, 2017, this dissolution action was filed.

The case was tried over six days in October 2018 and January 2019. On July 10, 2019, the trial court entered its judgment finding, inter alia , that both parties contributed to the acquisition of marital property, that both parties squandered marital assets and created substantial marital debt, and that both parties engaged in significant marital misconduct. In consideration of the relevant statutory factors set forth in section 452.330,1 the court divided the parties’ marital property equally,2

The court found that Wife squandered a significant amount of marital assets by gambling them away and that Wife was required to reimburse Husband $481,424 through distributions from PDI earnings pursuant to a 2015 consent pendente lite order (PDL) entered in the parties' first dissolution case which was filed on June 26, 2015, and dismissed by the parties on March 23, 2017. The court then offset this amount with the amount of marital assets Husband squandered in gifts to his paramour, and the amounts Husband owed Wife for retroactive maintenance, retroactive child support, and owed college expenses, which left Wife owing Husband $426,965. Finally, pursuant to section 452.355.1, the court ordered Husband to pay $50,000 of Wife's attorney's fees.

On August 9, 2019, each party filed an authorized post-trial motion challenging various aspects of the judgment. On September 11, 2019, the trial court heard argument on those motions, took them under submission, and ordered each party to submit a consent memorandum setting forth any agreed-upon amendments to the judgment by October 11, 2019. Neither party did so and the trial court did not rule on the post-trial motions within 90 days as contemplated by Rule 81.05(a)(2)(A).3 Instead, on November 12, 2019, 95 days after the post-trial motions were filed, and 5 days after those motions were deemed overruled by operation of Rule 81.05(a)(2)(A), the trial court purported to enter an amended judgment.4

Wife filed a timely notice of appeal on November 14, 2019, and Husband filed a notice of cross-appeal on November 22, 2019. On December 23, 2019, this Court ordered the parties’ appeals consolidated and directed Wife to file the initial brief. Additional facts are set forth herein as they become relevant to the points addressed below.

1. Summary of Wife's appeal.

In her appeal, Wife brings six points of error: (1) That because the trial court failed to rule on the post-trial motions within 90 days after the last such motion was filed, the judgment became final on November 7, 2019, whereupon the trial court lost jurisdiction thus rendering its November 12, 2019 amended judgment a nullity; (2) That the trial court abused its discretion by miscalculating the division of the profits from the sale of the marital home; (3) That the trial court erred in its findings regarding Wife's squandering of marital assets, subjecting her to the potential for double liability; (4) That the trial court abused its discretion in connection with the amount of the PDI distributions she owed Husband; (5) That the trial court abused its discretion in connection with the length of time Husband owed Wife retroactive child support; and (6) That the judgment's disposition of certain items of marital property was in conflict with certain entries on Attachment A to the judgment. Wife also seeks this Court's order that Husband pay half the cost of the transcript for this appeal pursuant to Rule 81.12(h).

2. Summary of Husband's cross-appeal.5

In his cross-appeal, Husband claims the court erred in six instances: (1) In granting any amount of maintenance to Wife whether current or retroactive; (2) In its computation of the amount of retroactive child support and in its determination that Husband is responsible for any portion of Daughter's college expenses; (3) In failing to consider several matters, including the testimony of witness Kevin Meyer, resulting in its erroneous calculation of the amount of Wife's gambling losses; (4) By deviating from the parties’ agreed-upon PDL when calculating the profits of PDI that were meant to be split evenly between them; (5) In its determinations as to the parties’ tax liability, including its determination that Husband did not have a legitimate claim to "innocent spouse status" in connection with the parties’ state tax liability; (6) In ordering Husband to pay $50,000 of Wife's attorney's fees; and (7) In ordering a 50-50 division of the marital estate when Wife's egregious marital misconduct warranted a 70-30 division in his favor.

Standard of Review

Rule 73.01(c), as interpreted by Murphy v. Carron , 536 S.W.2d 30 (Mo. banc 1976), governs our review. Romkema v. Romkema , 918 S.W.2d 294, 296 (Mo. App. E.D. 1996). Thus, in dissolution proceedings, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Overstreet v. Overstreet , 214 S.W.3d 347, 348 (Mo. App. E.D. 2007) (citing Murphy , 536 S.W.2d at 32.)

In dissolution cases the trial court has broad discretion in connection with the division of property, and the appellate court will interfere only when the division is so unduly weighted in favor of one party as to constitute an abuse of discretion. Rawlings v. Rawlings , 36 S.W.3d 795, 797 (Mo. App. W.D. 2001) (citing Silcox v. Silcox, 6 S.W.3d 899, 904-5 (Mo. banc 1999) ). "An abuse of discretion will be found only if the award is so arbitrary or unreasonable that it indicates indifference and lack of proper judicial consideration." Id. The party challenging the divorce decree has the burden of demonstrating such error. Id.

We consider the evidence and the permissible inferences therefrom in the light most favorable to the trial court's decision, and disregard all contrary evidence and inferences, Mehra v. Mehra , 819 S.W.2d 351, 353 (Mo. banc 1991) ; Pruitt v. Pruitt , 94 S.W.3d 429, 431 (Mo. App. E.D. 2003) (citing Chen v. Li, 986 S.W.2d 927, 931 (Mo. App. E.D. 1999) ).

Discussion - Wife's Appeal
1. Wife's Point I: The amended judgment was a nullity.

Wife asserts that since the trial court did not rule on the post-trial motions by November 7, 2019, which was 90 days after the last post-trial motion was filed, those motions were deemed overruled and the July 10, 2019 judgment became final by operation of Rule 81.05 such that the trial court lost jurisdiction over the case rendering its November 12, 2019 attempt to amend the judgment a nullity. We agree.

Any authorized post-trial motion filed within thirty days after a judgment is entered extends the circuit court's control over its judgment for up to 90 days from the date such motion was filed. Rules 78.04 and 81.05(a)(2)(A) ; C.R.S. v. C.M.H., 539 S.W.3d 54, 56 (Mo. App. E.D. 2017). In circumstances like here, where the court has not ruled on the after-trial motions, Rule 81.05 provides that "[i]f a party timely files an authorized after-trial motion, the judgment becomes final ... [n]inety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled...." Rule 81.05(a)(2)(A). The judgment becomes final for purpose of appeal on the 90th day, at which time the court is divested of jurisdiction and loses its authority over the judgment. Hanna v. Hanna , 446 S.W.3d 753, 755 (Mo. App. W.D. 2014) (citing Spicer v. Donald N. Spicer Revocable Living Trust , 336 S.W.3d 466, 469 (Mo. banc 2011) ). An amended judgment entered after the expiration of the 90-day period is a nullity. Id. ; C.R.S. , 539 S.W.3d at 56.

Wife's point is well-taken. The judgment became final on November 7, 2019, since the court failed to rule on the post-trial motions and that date was 90 days after the latest post-trial motion had been filed. So, the purported amended judgment issued five days later was a nullity because the trial court had already lost jurisdiction.

Husband's contends that the July 10, 2019 judgment was not final because it did not determine each party's liability as co-trustees of the Orazio J. Gianino Revocable Living Trust (the Trust) for the alleged misuse of over $170,000 of trust funds. Husband argues therefore that the court failed to identify and divide all...

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