Chen v. Li

• Decision Date: 02 March 1999
• Docket Number: No. 73247,73247
• Citation: 986 S.W.2d 927
• Parties: Jing Li CHEN, Respondent, v. Xiao Chuan LI, Appellant.
• Court: Missouri Court of Appeals

Page 927

986 S.W.2d 927

Jing Li CHEN, Respondent, v. Xiao Chuan LI, Appellant.

No. 73247.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 2, 1999.

Rosenblum, Goldenhersh, Silverstein & Zafft, P.C., Sanford J. Boxerman, Clayton, for appellant.

Frank Susman, Susman, Schermer, Rimmel & Shifrin, L.L.C., Clayton, for respondent.

Before HOFF, P.J., GARY M. GAERTNER, and RHODES RUSSELL, JJ.

GARY M. GAERTNER, Judge.

Appellant, Xiao Chuan Li ("husband"), appeals the judgment of the Circuit Court of St. Louis County, dissolving his marriage to respondent, Jing Li Chen ("wife"). Husband appeals those portions of the divorce decree regarding the division of marital property, maintenance and child support. Husband also attacks the trial court's denial of his motion for continuance. We reverse and remand for further proceedings.

Husband and wife were married in Shanghai, China on September 1, 1977. Their only child, Chen Li ("son"), was born on April 21, 1978. In 1984, husband left China for the United States. In 1991, wife and son left China to live with husband in the United States. At the time of this trial, son was beginning his second year of school at the University of Illinois in Champaign.

Around April 7, 1997, husband and wife separated. On April 8, 1997, wife filed her petition for dissolution of marriage. That same day, wife filed her statement of property and statement of income and expenses with the trial court. Also on April 8, 1997, wife filed a sworn affidavit, in a motion pendente lite, stating husband was the owner of and employed by Stream Enterprises, Inc. in the United States; Stream Enterprises, Inc. in China; Shanghai Full Shine Paper Co., Ltd. in the United States; Shanghai Full Shine Paper Co., Ltd. in Shanghai, China; and Shanghai Full Shine Paper Co., Ltd. in Beijing, China.

On June 5, 1997, husband filed his answer to the petition. However, husband failed to file his court-required income and expense and financial statements. On August 12, 1997, wife filed a motion to compel and for sanctions, based upon husband's failure to respond to interrogatories and requests for document production. On August 28, 1997, the hearing on the motion was held before the trial. At the hearing, husband's counsel explained husband had been in China since shortly after the filing of the dissolution action, attempting to revive his business interests. Husband's counsel asserted that, as a result, communications between husband and him were difficult, if not, impossible, and thus, husband was unable to receive and respond to discovery requests. The trial court granted wife's motion and ordered husband's pleadings stricken.

Also, at trial, husband's counsel filed a motion for a continuance, noting husband's unavailability to meet with his counsel and prepare for trial and that the case was only filed four months earlier. In response, wife's counsel argued the parties had been there for trial twice, in addition to a pretrial conference, and each time husband's counsel had offered the same excuse concerning husband's unavailability. Wife's counsel questioned how husband's unavailability would change if the continuance were granted. The trial court denied husband's motion.

At trial, when the trial court told wife's counsel to call her first witness, she stated wife "would like to file a first amended statement of property." ¹ After the trial court responded, "Okay.", wife's counsel proceeded to call her first witness. In her first amended statement of property, wife listed all the property she was able to locate on her own. Wife alleged in her first amended statement of property that husband has a property interest in numerous companies, which she listed by name. Wife also alleged in her first amended statement of property that husband holds accounts with Magna Bank, First Bank, Mercantile Bank, Roosevelt Bank, Jefferson Bank, the Bank of China and the Hong Kong and/or Shanghai Bank, Incorporated. This document further indicated husband owns three cars: a 1990 Dodge, a 1995 Toyota Corolla, and a 1994 Dodge station wagon.

At trial, wife called two witnesses, Robert Minkler, Jr., a certified public accountant, and herself. Husband neither presented any evidence nor attended the trial. While husband failed to appear personally for any of the trial dates, husband was represented at trial by his counsel.

Minkler's testimony, which was based upon his review of certain tax returns provided to him by wife's counsel, concerned three companies ² which husband apparently had a property interest in, as well as the finances and business dealings of those companies. Additionally, Minkler reviewed the personal income tax returns of husband and wife for the years 1991 through 1996. Based on these returns, he stated that, in 1996, husband's gross wages were $45,812.00 and wife's gross wages were approximately $5,000.00.

Wife took the stand next. While on the stand, wife's counsel handed her a copy of her statement of income and expenses which she had filed on the same day as her petition and wife testified that statement accurately reflected her income and expenses. Wife, however, did not testify as to any of the figures set forth on the statement, nor was the statement offered or received into evidence.

Wife testified she works for the St. Louis County Library repairing books, earning six dollars per hour. Her education was obtained in China and progressed to the high school level. While still in China, wife was weakened by three surgeries. When she was not ill, wife worked in a sewing machine factory in China while raising their son for seven years. At that time, wife and son were primarily supported by wife's parents. Shortly after wife and son arrived in the United States, husband introduced wife to his girlfriend, B.F. Dong, who was an employee of Stream Enterprises, Inc. and lived in St. Louis. In 1993, when the parties decided to buy a house, husband asked wife if his girlfriend could live with them in the family home. At the time of trial, the mortgage payments on the house were approximately $1,400.00 per month. Wife explained that prior to these divorce proceedings, husband would spend half the year in China and half the year in the United States.

Wife also testified she and husband had a joint account at Roosevelt Bank, from which she could write checks for food and clothes and bills, but that after August of 1996, husband did not want to give her the money for that account. Wife further testified husband owned Stream Enterprises and "some company, Dalian ³, in Shanghai." Wife stated husband mentally abused her, hit her twice, abused son, and stopped giving wife money.

Wife also testified as to certain items of marital property. She explained she and husband had purchased the home in Chesterfield in 1993. On cross-examination, wife said husband made a down payment of $72,000.00 when they purchased this house. She further indicated on cross-examination that the furniture in the home had cost more than $10,000.00. Wife also stated husband owns a 1990 Dodge automobile, which she drives, and a 1995 Toyota Corolla. Wife also indicated husband and Stream Enterprises, Inc. owned a 1994 Dodge. Wife went on to explain that before their separation, husband drove a BMW owned by Stream Enterprises, Inc.

In the course of wife's testimony, she stated she found at the family home a number of documents concerning bank accounts. She began to testify as to a statement of account at Roosevelt Bank and a statement of an individual retirement account at Jefferson Bank. At that point, the trial court and counsel held a discussion concerning these documents. Husband's counsel stated he would object to admission of these documents because they were not current. The trial court then informed wife's counsel, "Well, you know, you've got to do it differently than the way you're doing it. So, I mean, I don't know how to tell you to do it, but--I mean, you just can't like ask her if she found some papers and then expect that to prove up--". Wife's counsel responded, "Well, Judge, what I think I can do is I can submit my statement of property as to our allegations about the marital property. And I don't know that I need to go beyond that." Then, after the trial court explained to wife's counsel that husband's counsel is objecting to the admission of these documents, wife's counsel stated "Well, I haven't offered them." The trial court indicated that if wife's counsel offered the bank statements into evidence and husband's counsel objected, the court would sustain the objection.

Wife's counsel then requested a short recess, after which wife testified that on the day of trial, she and her counsel prepared a first amended statement of property, listing all of the properties she was able to locate on her own and providing the value when she knew it. However, as husband points out, wife did not read from the statement or offer it into evidence.

Furthermore, on cross-examination, wife conceded that as to those bank accounts which she listed, she was not aware what, if anything, the accounts presently contained. She did identify one account at Magna Bank, which is for her, with approximately "$500, maybe", as well as an account at First Bank which she said belonged to son. As to Mercantile Bank, Roosevelt Bank, Jefferson Bank, the Bank of China and Shanghai Bank Incorporation, wife was unable to say whether any accounts which she and/or husband have had at those institutions were open or closed.

Wife also testified about two suitcases full of American one hundred-dollar bills which husband brought to the marital home, one of which she witnessed in early 1997.

At the end of the trial, the trial court instructed counsel to prepare an order. The same day, the trial court entered the order which wife's counsel had prepared. ⁴ The trial court dissolved the parties' marriage and awarded custody of son to wife. The decree...