Belden v. Belden

Decision Date27 December 2012
Docket NumberNo. SD 31694.,SD 31694.
Citation389 S.W.3d 717
PartiesAnnie BELDEN, Plaintiff–Appellant, v. Timothy BELDEN, Stuart H. King, and James R. Royce, Defendants–Respondents.
CourtMissouri Court of Appeals


R. Lynn Myers, Springfield, for Appellant.

Stuart H. King, Springfield, for Respondent.


Annie Belden (Appellant) appeals the trial court's judgment entered in favor of Timothy Belden (Respondent) upholding the execution sale of a home formerly owned by the parties as tenants in common. Specifically, Appellant claims: (1) the trial court erred as the home was her homestead and was, therefore, exempt from execution; (2) the trial court erred in classifying her claim for conversion of personal property located in the home as one in equity to divide marital property; (3) the trial court erred in awarding Respondent attorney's fees and costs; and (4) the trial court erred in granting summary judgment on her claim for wrongful execution. We affirm.

Factual and Procedural Background

Appellant and Respondent's marriage was dissolved by order of the court on April 30, 2004. The parties were awarded joint legal custody of the three children born of the marriage. The eldest child resided primarily with Respondent, while the two minor children resided primarily with Appellant. Appellant was required to pay $150.00 per month to Respondent as support for the eldest child, and Respondent was required to pay $200.00 per month to Appellant for child support for each of the two minor children. As part of the “PROPOSED SETTLEMENT SUMMARY”, Appellant and Respondent owned real property, a home located at 2865 E. Catalpa, as tenants in common for one year “or until [Appellant] acquir[ed] a loan in her own name (whichever comes first).” If Appellant was not able to assume the balance of the loan or acquire a loan in her name within one year, the property would be sold and the proceeds divided equally between Appellant and Respondent. The settlement also provided [t]he parties have equitably divided the household furnishings that they agreed to be marital property and set apart to each other those items that they have agreed are non-marital property.”

Respondent filed a motion to modify child support in late 2004. The court entered a judgment of modification on October 3, 2005, requiring Appellant to pay to Respondent $961.00 per month in child support. Appellant later filed a motion to set aside the judgment and for a new trial, claiming she had been abandoned by her attorney. The court granted Appellant's motion to set aside the modification judgment, but ordered the terms of the modification remain in place as a temporary order of the court pending the final modification judgment.

The final modification judgment, entered on January 18, 2007, awarded Respondent sole custody of the children and required Appellant to pay $661.00 per month in child support.1 The court ordered Appellant and Respondent to split post-secondary education expenses for the two minor children. Also, the court sanctioned Plaintiff for her “continuous and intentional disregardof the orders of [the] Court by ordering (1) that Appellant pay all GAL fees, including reimbursing Respondent for the $500.00 deposit previously made or paid to the GAL; and (2) that Appellant partially reimburse Respondent for his attorney's fees, including an award of $6,150.00 to James R. Royce (Royce), counsel for Respondent, which was in addition to $500.00 in fees he had previously been awarded.

Respondent and Royce applied for writs of execution 2 on May 15, 2007. Respondent's writ application identified the April 30, 2004 dissolution as the judgment entered against Appellant, and listed $27,393.00 as the principal amount of the debt. Royce's writ application similarly identified the April 30, 2004 dissolution as the judgment entered against Appellant, and listed $6,650.00 as the principal amount of the debt owed. Both applications instructed the sheriff to levy upon Appellant's interest in the home, owned by Appellant and Respondent as tenants in common. On May 30, 2007, the sheriff levied Appellant's property and duly filed the notice of levy with the recorder of deeds. The sheriff also mailed notice of sheriff's sale and notice of exemptions to Appellant at the home. Appellant failed to file for any exemptions or challenge the sale in any other way.3 The property was sold in accordance with the notice of sale on July 3, 2007, to Respondent for $7,000.00. The proceeds of the sale, after costs, were applied to the debt owed to Royce.

On August 16, 2007, Respondent filed a petition for unlawful detainer, alleging ownership of the home by virtue of the sheriff's sale, and that [Appellant] has refused and continue[s] to refuse to vacate and otherwise surrender possession of the Property.” Appellant failed to appear for the hearing, and the court issued judgment in favor of Respondent for possession of the home on September 12, 2007. Additionally, the judgment ordered [a]ny and all personal property of [Appellant] remaining in the subject real property on this date is declared and deemed to be abandoned by [Appellant] and [Respondent] may remove and/or dispose of the same in any reasonable manner.”

Two years later, on August 12, 2009, Appellant filed a five-count petition against Respondent, Royce, and King. In relevant part, Appellant alleged that the property was her homestead and was exempt from execution, and, because the sheriff failed to have the property appraised, the sale and deed were void. Appellant also alleged that Respondent wrongfully seized and refused to return to her specific items of personal property, “namely all her silverware, her china, all her baby furniture, her air hockey table, and a painting by her daughter.” Finally, Appellant alleged a claim against Respondent, Royce, and King for wrongful execution because Respondent and Royce did not have any judgments against Appellant dated April 30, 2004, as identified on the writ applications.

Respondent, Royce, and King filed a motion for partial summary judgment on the basis that the home was not Appellant's homestead and Appellant failed to file a claim for the homestead exemption; the motion was granted by the trial court.4 On the day of trial, the court determined that “the only matter pending before this Court at this time can only be construed as an action in equity to divide alleged marital property which was not divided by the divorce court[,] and excused the jury. The court held a bench trial to resolve Appellant's claim that Respondent had wrongfully seized items of her personal property and Respondent's counterclaim for damages. The trial court found in favor of Respondent on Appellant's claim that he had wrongfully seized her personal property, and in favor of Appellant on Respondent's counterclaim for post-secondary education expenses. The court also assessed all court costs and attorney's fees against Appellant for “her disregard of the judgment of the divorce court and the lack of merit of the claims brought in this case,” in the amount of $14,618.35. This appeal timely followed.


In her first and second points, Appellant argues summary judgment was inappropriate because the home was exempt from execution as her homestead property. In her first point, Appellant claims:

The trial court erred in sustaining [Respondent, Royce, and King's] motion for partial summary judgment on Counts 1, 4, and 5 based upon the allegation that the real property was not [Appellant's] homestead because Missouri law states that summary judgment is inappropriate if there are genuine issues of material fact in that while there was a lease on the property [Appellant] showed facts upon which is [sic] could be determined that she had not abandoned the homestead and the house in question was where she returned to habitually from her business as a traveling nurse and that she maintained her personal property and locked bedroom in that house.

In her second related point, she avers:

The trial court erred in sustaining [Respondent, King, and Royce's] motion for partial summary judgment on counts 1, 4, and 5 based upon the allegation that [Appellant] failed to claim the homestead exemption because Missouri law states that there is no requirement that a claim for the homestead exemption has to be made in that if the property is a homestead then the property is absolutely exempt and the exemption is self-enforcing.

Although Appellant frames both points as error by the trial court in sustaining the motion for partial summary judgment, the dispositive issue—whether Appellant was required to file a claim for the homestead exemption—presents no factual question. Rather, her argument raises a question of law, specifically, whether section 513.445, the Missouri statute governing the exemption process, required her to file a claim for the homestead exemption.5 “Matters of statutory interpretation and the application of the statute to specific facts are ... reviewed de novo. J.K.M v. Dempsey, 317 S.W.3d 621, 624–25 (Mo.App. S.D.2010). As a matter of law, Appellant was required to file a claim for the homestead exemption, which she failed to do; therefore, we need not reach the question of whether the property was factually her homestead.

Section 513.445.2 provides [t]he judgment debtor may make claim for exemption by filing a verified request with the levying officer within twenty days after notice of the levy.” A similar procedure is outlined in Rule 76.075(b). The plain language of the statute clearly outlines the filing process for claiming an exemption. “There is no need to resort to statutory construction to create an ambiguity where none exists.” State v. Moore, 303 S.W.3d 515, 521 (Mo. banc 2010). Nothing in the statute suggests, as Appellant does, that a debtor is not required to file a claim for exemption.

In support for her assertion, Appellant relies on ...

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