Bowman v. Prinster
| Decision Date | 29 November 2012 |
| Docket Number | No. ED 94509.,ED 94509. |
| Citation | 384 S.W.3d 365 |
| Parties | Susan E. BOWMAN, Respondent, v. Gerard L. PRINSTER, Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Benicia Ann Baker–Livorsi, St. Charles, MO, for appellant.
Tonya D. Page, St. Louis, MO, for respondent.
Gerard Prinster (Husband) appeals the judgment entered by the Circuit Court of St. Louis County dissolving his marriage to Susan Bowman (Wife). Husband claims the trial court erred in: (1) permitting his attorneys to withdraw and denying his motion for a continuance; (2) relying on incompetent testimony and stale appraisals in valuing the parties' real estate; (3) determining that the home the parties shared during the marriage was Wife's separate property; (4) determining that Husband's interests in a business and a retirement account were marital; and (5) awarding Wife temporary and future maintenance. We affirm.
In June 2007, Wife filed a petition to dissolve her marriage to Husband. Along with her petition, Wife filed a motion requesting relief pendente lite (the PDL Motion). In the PDL Motion, Wife requested temporary maintenance, asserting that Husband maintained complete control over a majority of marital funds.
Wife filed a motion for a temporary restraining order (the TRO) on February 9, 2009. Wife requested that the trial court prohibit Husband from disposing of proceeds from the imminent sale of a real estate parcel. The trial court entered a consent order granting Wife's request (the TRO Order).
On February 26, 2009, the trial court permitted Husband's first set of attorneys to withdraw. Husband's second set of attorneys entered their appearance in March 2009 and requested a continuance of the trial. The trial court granted the continuance and scheduled the trial to begin on July 6, 2009.
On June 16, 2009, Husband's second set of attorneys sent Husband, by mail and email, their motions to withdraw and shorten time for a hearing on the withdrawal motion. On June 18, 2009, eighteen days before trial, Husband's attorneys filed the motions and certificates of service showing they sent the motions to Husband. That day, the trial court conducted a hearing, which Husband attended. Husband's attorneys testified that they had joined a new law firm and that Husband had not signed an engagement letter with the new firm. Husband's attorneys also testified that they were “not able to assist [Husband] appropriately because of the restrictions that he has put on us,” such as refusing to hire experts for the trial. Husband testified that he had not signed the engagement letter because the new firm had asked him to advance $25,000 for attorneys' fees and the costs of retaining an appraiser and a forensic accountant. Husband testified that he was unable to advance the money. Husband stated: The trial court advised Husband: Husband responded, “that's correct.” The trial court granted the motion to withdraw.
On July 2, 2009, Husband filed a motion to continue the trial date, and his new attorney filed a limited entry of appearance for the sole purpose of arguing the continuance motion. The trial court held a hearing on the motion on the morning of July 6, the first day of trial. The trial court found that a continuance would prejudice Wife for the following reasons:
many of the assets are in the exclusive control of Husband; during these proceedings Husband has sold and further encumbered property without consulting Wife; Husband received all rental income; Wife ... incurred substantial attorney fees in preparation for this Trial date; Wife incurred fees in retaining a commercial appraiser and financial expert, both of which reports may have been stale if this Trial date were continued; and Wife's [sic] incurred substantial fees in subpoenaing current bank records.
The trial court denied Husband's motion.
The trial court conducted a trial at which Husband represented himself. Wife presented evidence regarding the value of real estate owned by the parties, their trusts, and various business entities in which Husband owned an interest. Wife testified as to the value of some of these real estate parcels, including parcels owned by Husband's trust and his entities. Wife called an appraiser to testify as to the value of certain parcels and offered written appraisals into evidence.
Wife presented testimony regarding SLGP, L.L.C. (the LLC), a limited liability company formed before the marriage. Wife offered into evidence the LLC's operating agreement, which provided that Husband owned a 52% interest and Husband's two children from a previous marriage each owned a 24% interest. Wife introduced the LLC's bank statements and testified that Husband deposited rents from property owned by his other business entities into the LLC's accounts and used the LLC's accounts to pay personal expenses. Wife called an accountant, Terry Richars, as a witness. Mr. Richars testified that he had reviewed the LLC's operating agreement, tax returns, and bank statements. Mr. Richars stated that Husband had paid personal expenses using LLC funds and that the LLC had not reported any distributions to Husband's children on its tax returns. Mr. Richars testified that the LLC had no formal bookkeeping and no internally prepared financial statements. Mr. Richars concluded that Husband controlled 100% of the LLC, based on “not following the operating agreement, the distributions were not pro rata, ... and the bank accounts were used to pay several or a significant amount of [Husband's] daily living expenses.”
Wife testified that her trust owned the home the parties shared during their marriage (the Residence). Wife offered into evidence the following documents:
1. A 1996 general warranty deed in which certain parties transferred the Residence to Husband;
2. A 1996 quitclaim deed in which Husband transferred the Residence to the LLC;
3. An unrecorded 1999 quitclaim deed signed by Husband on behalf of the LLC, transferring the Residence to Husband and Wife as joint tenants with right of survivorship;
4. A 2004 quitclaim deed signed by Husband on behalf of the LLC, transferring the Residence to Wife; 5. A 2004 quitclaim deed in which Wife transferred the Residence to Wife's trust; and
6. A 2004 document entitled “Assent to Execution of Deeds and Waiver of Marital Rights,” which Husband executed as grantor to Wife as grantee and recorded against the Residence (the Assent and Waiver).
In the Assent and Waiver, Husband stated:
I ... hereby expressly assent to any conveyances of [the Residence] made by [Wife] at any time and acknowledge and state that any such conveyances are not to be deemed to be in fraud of my marital rights. I hereby waive any right to make any legal or equitable claim against [the Residence] now or at any future time, according to and as required by § 474.150....
Wife testified that Husband executed the 1999 deed to Husband and Wife approximately fourteen days prior to the parties' marriage. Wife testified that Husband Wife testified that the deed was never recorded. Wife testified that in 2004, Husband executed the deed transferring the Residence from the LLC to Wife and the Assent and Waiver, both of which were recorded. On cross-examination, Husband asked Wife: “Was not the [2004 quitclaim] deed as well as the waiver of marital rights done so that we could get a loan that would pay off the commercial lien that I had on the [Residence]?” Wife answered: “We did obtain a new loan at that time or I obtained a new loan at that time.”
Wife presented evidence that Husband owned a retirement account. Wife testified that she discovered this account when she reviewed Husband's bank statements and noticed a recurring debit to the account. Wife introduced account statements showing that Husband deposited funds into the retirement account monthly during the marriage.
The trial court entered findings of fact, conclusions of law, and a judgment and decree dissolving the marriage. The trial court found that “the matter was set for trial numerous times before it was finally heard” and that several of the continuances were at Husband's request or due to his failure to disclose assets or provide discovery. The trial court awarded the Residence to Wife, finding that it was a gift from Husband to Wife and was her separate property. The trial court awarded Husband his interest in the LLC and its assets and liabilities, finding that the LLC “is 100% Husband” and that Husband's interest in the LLC's assets was marital. The trial court found that Husband's retirement account was marital and awarded it to Wife. The trial court, which heard the PDL Motion with the trial “[d]ue to the complexity of the case,” found that Wife had not received any rental income or sale proceeds from the parties' real estate during the litigation. Accordingly, the trial court ordered Husband to pay Wife temporary maintenance retroactive to the filing date of her PDL Motion. Addressing Wife's request for future maintenance, the trial court found that the property and cash payments awarded to Wife would be sufficient to meet her reasonable needs, but that Wife would not receive the property and payments immediately. The trial court ordered Husband to pay Wife monthly maintenance until Wife received all property and payments awarded to her. Husband appeals.
This court will affirm the judgment in a court-tried case unless there is no substantial evidence to support it, it is against the weight of the...
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