Cohen v. Cohen
| Decision Date | 11 October 2005 |
| Docket Number | No. WD 63566.,No. WD 64252.,No. WD 63548.,WD 63548.,WD 63566.,WD 64252. |
| Citation | 178 S.W.3d 656 |
| Parties | Harry B. COHEN, M.D., Appellant-Respondent, v. Ann M. COHEN, Respondent-Appellant. |
| Court | Missouri Supreme Court |
John R. Shank, Jr., Kansas City, MO, for appellant-respondent.
Elizabeth K. Magee, Lawrence W. Ferguson, Co-Counsel, Columbia, MO, for respondent-appellant.
Before BRECKENRIDGE, P.J., LOWENSTEIN and HARDWICK, JJ.
Harry B. Cohen (Husband) appeals, for the second time, from a judgment in the proceedings concerning the dissolution of his marriage to Ann M. Cohen (Wife). In his first appeal, Husband challenged the trial court's maintenance award to Wife, division of property, and award of attorney's fees to Wife. This court reversed and remanded the maintenance award and affirmed the trial court's judgment in all other respects. While the remand was pending, Husband filed a motion for contempt and a motion for modification of child support, both including a claim for his attorney's fees. Wife filed a motion to transfer to her custody of the trust account of the parties' minor daughter. She also requested attorney's fees for the circuit court proceedings. The trial court consolidated for hearing the remanded maintenance issue and all other motions.
After a hearing, the trial court entered its judgment. In its judgment, the trial court awarded modifiable maintenance to Wife of $688 per month. The trial court also modified the award of child support, ordering Husband to pay $1823 per month. Additionally, the trial court found Wife in contempt for failing to deliver to Husband some of the property awarded to him in the initial decree. The court also awarded Wife $9000 in attorney's fees for the circuit court proceedings and found that Husband's request for attorney's fees was abandoned. Finally, the trial court found that it lacked jurisdiction over Wife's motion to transfer custody of her daughter's trust account and denied Wife's motion. Both Husband and Wife appeal the judgment of the trial court. While the case was pending on appeal, Wife filed a motion for attorney's fees on appeal. The trial court sustained her motion and entered a judgment of $8,500 for Wife's attorney's fees. Husband also appeals this judgment. The appeals are consolidated.
Husband raises fourteen points on appeal. Seven of Husband's points challenge various aspects of the trial court's award of $688 in monthly maintenance to Wife. In three points, he challenges the trial court's two awards of attorney's fees to Wife and the court's failure to award him attorney's fees on his motion for contempt. In another point, Husband claims that the trial court erred in failing to make all the findings of fact he requested. In an additional point, Husband asserts that the trial court erred in finding that Wife's relationship with Glen Hancock was "irrelevant" to the proceedings. And, in his final two points, Husband challenges the trial court's child support award.
Wife cross appeals the trial court's judgment and raises two points. In her first point, Wife claims the trial court erred in finding her in contempt of court because there was not substantial evidence that she had the marital property awarded to Husband. In her second point, Wife asserts the trial court erred in awarding her only $9000 in attorney's fees for the circuit court proceedings because Husband has substantially more income than she does.
Because the trial court's calculation of child support utilized an incorrect amount for Husband's monthly gross income, the trial court's award of child support is erroneous. The trial court also erred in awarding Wife interest on the award of maintenance from the date of the trial court's original judgment to the date of the judgment on remand. The trial court's judgment on these two issues is reversed and modified by this court, pursuant to Rule 84.14. The remainder of Husband's points on appeal are without merit and, therefore, are denied. On Wife's cross appeal, the trial court's judgment finding Wife in contempt is not ripe for appeal, so Wife's appeal of the contempt order is dismissed. Finally, Wife's challenge to the attorney's fees awarded to her for the circuit court proceedings is without merit and is denied.
Husband and Wife were married on February 17, 1973. On May 24, 1999, Husband filed a petition for dissolution of the parties' marriage. The trial court entered its judgment dissolving the parties' marriage on May 25, 2000. The judgment awarded the parties joint legal custody of their minor child, Elizabeth, and Wife sole physical custody. The trial court further ordered Husband to pay $1856 per month in child support and $800 per month in non-modifiable maintenance. The trial court divided the parties' assets, which included IRAs, so that they each received fifty percent of the marital property. In order to achieve this equal division of marital property, the trial court ordered Husband to make a cash payment of $362,500 to Wife.
Husband appealed and Wife cross-appealed the trial court's May 25, 2000 judgment. In Cohen v. Cohen, 73 S.W.3d 39 (Mo.App.2002) (Cohen I), this court reversed the trial court's judgment with regard to maintenance, and affirmed the trial court's judgment in all other respects. The Cohen I court remanded the case back to the trial court with instructions to reevaluate whether the IRAs awarded to Wife were income producing and, if so, whether any amount of that income should be imputed to Wife in light of Hill v. Hill, 53 S.W.3d 114 (Mo. banc 2001). 73 S.W.3d at 49. In addition, this court directed that, because there was "no substantial evidence of an impending change in the financial circumstances of the parties in the future" that would justify termination of Wife's maintenance, Wife's maintenance should not be limited in duration and should be modifiable. Cohen I, 73 S.W.3d at 59.
While the remand was pending on the issue of maintenance, the parties filed other pleadings. Husband filed a motion to modify, seeking to reduce the award of child support, and a motion for contempt for Wife's failure to deliver $27,831 of the property awarded to him.1 Wife filed a motion to transfer custody to her of the trust account of the parties' minor child. The trial court heard evidence on the remanded issue of maintenance and the other pending motions and, on October 23, 2003, the trial court issued its second judgment. In that judgment, the trial court noted that, while it was obligated to consider income from Wife's IRAs, it was not obligated to impute that income to Wife. The trial court declined to impute IRA income to Wife because, even though it found that Wife could withdraw up to $1100 per month from her accounts without penalty, it found that such withdrawals would reduce the assets of her accounts. Thus, the trial court ordered Husband to pay monthly maintenance of $688 to cover the shortfall between Wife's reasonable monthly expenses and Wife's monthly income. Based on this new maintenance award, the award of child support was modified, and Husband was ordered to pay $1823 per month. The trial court awarded Wife $9000 in partial attorney's fees for the circuit court proceedings. The court further found that Husband abandoned his claim for attorney's fees. Finally, the trial court found Wife in contempt of court for failing to deliver property to Husband, as required by the trial court's original judgment, and ordered Wife to compensate Husband in the amount of $27,831. Husband appeals and Wife cross appeals this new judgment. After the appeal and cross appeal were filed, Wife filed a motion for attorney's fees on appeal, which the trial court sustained and awarded Wife $8500. Husband also appeals this second award of attorney's fees to Wife. The appeals are consolidated. For ease of discussion, some of the parties' points will be considered together and some will be taken out of order.
It is necessary to first consider Husband's claim that the trial court committed reversible error in failing to make certain findings of fact and conclusions of law. If this claim is meritorious, the judgment entered on October 23, 2003, would be reversed without consideration of the merits of Husband's appeal. Husband asserts that the trial court did not comply with his written request for findings of fact and conclusions of law, made under Rule 73.01. Husband claims the trial court erred in not specifically making findings of fact with regard to his requests # 2, 3, 5, 6, and 11. Additionally, Husband claims the trial court erred in failing to make specific conclusions of law with regard to his requests # 7 and 12.
Under Rule 73.01(c), "[t]he court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party." (Emphasis added). Husband claims that the trial court's failure to make the required findings is reversible error. Husband is correct that the trial court's failure to make "specific findings of fact as requested is error[.]" Flud v. Flud, 926 S.W.2d 201, 204 (Mo.App.1996). Nevertheless, "failure of a trial court to issue findings which were properly requested does not always require reversal." Id. Rather, reversal is mandated only when the trial court's failure to issue the requested findings "materially interferes with appellate review." Id. "If the record is sufficient to support the judgment, the appellate court will affirm." Id.
Here, Husband requested specific findings on both subparagraphs of subsection one of section 452.335, RSMo 2000.2 The trial court did not make findings that expressly utilized the language of subparagraphs (1) and (2) of section 452.335....
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