Cohen v. Cohen

• Decision Date: 23 April 2002
• Docket Number: 58810
• Citation: 73 S.W.3d 39
• Parties: Harry B. Cohen, M.D., Appellant-Respondent, v. Ann M. Cohen, Respondent-Appellant. WD58810 (Consolidated with WD58838, WD59043 and WD59066) Missouri Court of Appeals Western District 0
• Court: Missouri Court of Appeals

Harry B. Cohen, M.D., Appellant-Respondent v Ann M. Cohen, Respondent-Appellant

WD58810 (Consolidated with WD58838, WD59043 and WD59066)

Missouri Court of Appeals Western District

04/23/2002

Appeal From: Circuit Court of Boone County, Hon. Joseph D. Holt

Counsel for Appellant: Milt Harper and Leslie Ann Schneider

Counsel for Respondent: James A. Kessinger and John R. Shank

Opinion Summary:

Harry B. Cohen appeals the court's judgment dissolving his marriage to Ann M. Cohen with respect to the court's division of marital property and its awards of maintenance and attorney's fees to Ann Cohen. She cross-appeals the court's award of maintenance.

Harry Cohen raises four points on appeal. In Point I, he claims that the court erred in awarding maintenance to his ex-wife because, in finding that she did not have sufficient property awarded to her in the dissolution to provide for her reasonable needs, it abused its discretion in failing to consider the portion of his retirement funds awarded to her as marital property. In Point II, he claims that the court erred in awarding his ex-wife maintenance of $800 per month, based on the court's finding that she had reasonable monthly needs of $7,354, because the record was insufficient to support such a finding. In Point III, he claims that the court erred in ordering him to pay his ex-wife $362,500 in cash within 90 days of the entry of the dissolution judgment to effectuate an equal distribution of marital property, because it resulted in an "unfair and unequal" division of the property in favor of his ex-wife. In Point IV, Harry Cohen claims that the court erred in awarding his ex-wife attorney's fees of $41,751 because in doing so, the court did not consider her financial resources to pay her own fees and her actions during the pendency of the dissolution proceeding in that the court awarded her more than $1.4 million in marital property, and her conduct during the dissolution proceeding unnecessarily increased her attorney's fees.

Ann Cohen raised two points in her cross-appeal. In Point I, she claims that the court erred in determining the amount of maintenance to award her because her income was insufficient to meet her reasonable expenses and she therefore was entitled to a greater award of maintenance. In Point II, she claims that the court erred in ordering its maintenance award to her to terminate when she reaches the age of 59 years, six months because there was no substantial evidence of an impending change in the financial circumstances of the parties to justify its termination.

Division I holds: (1) The record indicates that the court did not impute any income to Ann Cohen from retirement funds awarded to her as marital property because it found that the funds were not income-producing property in that any early withdrawal from the funds would subject the respondent to additional taxes, penalties and depletion. The recent Supreme Court decision in Hill v. Hill, 53 S.W.3d 114 (Mo. banc 2001), requires trial courts to consider the income from retirement and IRA accounts when determining maintenance. Hill also sets forth a list of factors courts should consider when determining the amount of income, if any, to impute to these retirement accounts. As the court in this case found that the retirement accounts were not income-producing property solely because they were subject to additional taxes, penalties and depletion upon early withdrawal, the court erroneously declared and applied the law. We reverse the maintenance award to the respondent and remand to the trial court to apply the factors set forth in Hill, and rule on the appropriateness of a maintenance award to the respondent.

(2) In claiming that the record does not support Ann Cohent's monthly expense total of $7,354, Harry Cohen challenges several of the specific expenses she claimed in her income and expense statement, which the court adopted in its maintenance determination. As to her claimed monthly expense for charitable contributions, we find that the record does not reflect that such contributions were made throughout the course of the marriage and that the expense was unsupported. Ann Cohen also was improperly allowed to claim expenses for the benefit of the minor child as her own expenses. In addition, the court improperly allowed her to claim expenses for maintaining the marital home because the marital home actually was awarded to Harry Cohen. As such, we reverse the court's maintenance award to Ann Cohen.

(3) In claiming that the court's division of property was tilted unfairly in favor of his ex-wife, Harry Cohen contends that the $362,500 cash equalization payment he was ordered to make to his ex-wife within 90 days of the judgment to effectuate the division of the art business and the marital home in effect would force him to sell the business and the home, and the court failed to consider that he would be forced to incur all of the tax consequences and risks of sale associated therewith. The record does not reflect that the court ordered the sale of this property, and the evidence of Harry Cohen's financial situation following the dissolution, and his expertise in selling artwork, indicate that he would not need to completely sell off this property to make the cash equalization payments. In addition, he cannot complain now of the tax consequences of the sale of this property because he failed to present any evidence of the potential tax consequences at trial. As such, the division of marital property was not in error.

(4) We find no merit in Harry Cohen's claim that the court erred in awarding his ex-wife her attorney's fees. Although she may have had the resources to pay for her attorney's fees, there is no question that the disparity in income and future earnings capacity indicated that Harry Cohen had a far greater ability to pay for these fees. Additionally, the record reflected that his conduct during the course of the dissolution necessarily increased his ex-wife's attorney's fees.

(5) Ann Cohen's first point on cross-appeal is dismissed for failing to comply with Rule 84.04(d). This point failed to explain in summary fashion why, in the context of the case, her legal reasons supported her claim of error, and as such, it was merely an abstract statement of the law which preserved nothing for our review.

(6) We find that the evidence does not support such the court's order terminating Ann Cohen's maintenance at age 59 years, 6 months. Although she would be eligible to withdraw money from her retirement funds without penalty at this age, these funds are invested in stocks, and as such, the court's apparent determination that her reasonable needs would be met by these available funds was mere speculation as to the funds' future value. Because there was no substantial evidence of an impending change in the parties' future financial circumstances, the court should not have limited the duration of the maintenance awarded to Ann Cohen.

Howard and Holliger, JJ., concur.

Edwin H. Smith, Presiding Judge

Harry B. Cohen appeals the judgment of the Circuit Court of Boone County dissolving his marriage to the respondent, Ann M. Cohen, with respect to the court's division of marital property and its awards of maintenance and attorney's fees to the respondent. The respondent cross-appeals the trial court's award of maintenance.

The appellant raises four points on appeal. In Point I, he claims that the trial court erred in awarding maintenance to the respondent because in finding that she did not have sufficient property awarded to her in the dissolution to provide for her reasonable needs, as required by section 452.335.1¹ to justify such an award, it abused its discretion in failing to consider the portion of the appellant's retirement funds awarded to her as marital property. In Point II, he claims that the trial court erred in awarding the respondent maintenance of $800 per month, based upon the court's finding that she had reasonable monthly needs of $7,354, because the record was insufficient to support such a finding. In Point III, he claims that the trial court erred in ordering him to pay the respondent $362,500 in cash within 90 days of the entry of the judgment of dissolution to effectuate an equal distribution of marital property, specifically the parties' art business valued at $600,000, and their marital home, valued at $125,000, because it resulted in an "unfair and unequal" division of the property in favor of the respondent. In Point IV, the appellant claims that the trial court erred in awarding the respondent attorney's fees of $41,751 because in doing so, the court did not consider, as required by section 452.355, the respondent's financial resources to pay her own fees and her actions during the pendency of the dissolution proceeding in that the trial court awarded her over $1.4 million in marital property, which could have been used to pay her legal fees, and her conduct during the dissolution proceeding unnecessarily increased her attorney's fees.

The respondent raises two points in her cross-appeal. In Point I, she claims that "[t]he trial court erred in determining the amount of maintenance in its finding that the respondent's need of maintenance was the sum of $800.00 per month until she reaches the age of 59 upon the same shall end because the evidence presented indicated that wife's income, including earned income and interest income was insufficient to meet her monthly expenses and that there was insufficient evidence to support a finding that the marital property awarded to Wife would be producing sufficient income to pay Wife's reasonable expenses and Wife was in need of an award of maintenance exceeding $800.00 per month." In Point II, she claims that the trial court erred in ordering its maintenance award to her to terminate when she reaches the age of 59 because there was no substantial evidence of an impending change in the financial...