O'Connor v. Miroslaw

• Decision Date: 20 November 2012
• Docket Number: No. WD 74673.,WD 74673.
• Citation: 388 S.W.3d 541
• Parties: Katherine O'CONNOR (Formerly Miroslaw), Appellant, v. Michael S. MIROSLAW, Respondent.
• Court: Missouri Court of Appeals

388 S.W.3d 541

Katherine O'CONNOR (Formerly Miroslaw), Appellant,

v.Michael S. MIROSLAW, Respondent.

No. WD 74673.

Missouri Court of Appeals, Western District.

Nov. 20, 2012.

Anita I. Rodarte, Kansas City, MO, for Appellant.

Thomas B. Manson, for Respondent.

Before Division Three: ALOK AHUJA, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.

VICTOR C. HOWARD, Judge.

Katherine O'Connor appeals the judgment of the trial court entering a dissolution decree. In several points on appeal, she challenges the court's determinations regarding child custody and property division issues. The judgment of the trial court is affirmed in part and reversed in part, and the case is remanded to the trial court with directions.

FACTS

Katherine O'Connor (hereinafter “Wife” or “Mother”) and Michael S. Miroslaw (hereinafter “Husband” or “Father”) were married on May 11, 2002. The parties separated on February 1, 2010. Prior to the marriage, Husband accumulated substantial assets through successful business ventures. He estimated that at the time of the marriage, his net worth was approximately $4.6 million. He was not employed at that time, but had significant income from his investments which made his employment unnecessary. When the parties planned to marry, Wife was employed with two young children from a previous marriage, Tommy, born May 1998, and Sophie, born August 1999. Husband and Wife agreed that when they married, Wife would quit working and remain home to be a full-time mother to Tommy and Sophie, and Husband and Wife would start a family of their own. The parties also agreed that Husband's assets and income were sufficient to support Wife, Tommy, Sophie, and the family they planned to start together.

Premarital Agreement

On May 7, 2002, the parties signed a premarital agreement that contained a choice of law provision stating it was governed by Kansas law. The agreement also provided that compensation, defined within the agreement, earned during the marriageshould be deposited into a joint account, and any expenditure made from the account was to be made with both parties' consent. If a party made an expenditure without the other's consent, the non-consenting party had 60 days to object once he or she knew or had reason to know an expenditure was made, or any objection was waived. In the event of divorce, the compensation account was to be equally split between the parties. Both parties acknowledge that the compensation account was never created, but all compensation earned by Husband was deposited into a First State Bank (hereinafter “FSB”) account titled in Husband's individual name, which existed before the marriage and had been set aside in the agreement as his individual property.

The agreement further provided for division of the parties' property in the event of a divorce. Specifically, the agreement defined what was Husband's individual property, including a residence in Fairway, Kansas (hereinafter “Fairway”), and what Wife's share of Husband's individual property would be upon divorce.

Marriage

Upon the marriage of the parties, Wife, Tommy, and Sophie moved into Fairway with Husband. Wife quit employment and was not employed again throughout the remainder of the marriage. Shortly after the marriage, the parties opened an account with Bank of America (hereinafter “BoA”) titled in their joint names. The marriage produced three children, Maxwell, born April 2003, Peter, born October 2005, and Helen, born January 2007.

In February 2003, Husband began working for Store Financial (hereinafter “Store”), a business in which he held an approximate ten percent equity interest. He continued to work for Store through the date the Judgment for Dissolution of Marriage (hereinafter “Judgment”) was entered. Husband's compensation from Store in 2003 and 2004 was deferred, and he began receiving compensation from Store in 2005. The deferred compensation from 2003 and 2004 was paid to Husband in 2006. All compensation was deposited into Husband's FSB account.

On July 17, 2006, the parties purchased a home on Westover Road, Kansas City, Missouri (hereinafter “Westover”), which was jointly titled to them. The purchase price of Westover was $1,135,000, for which the parties paid $544,929, and took out a $600,000 mortgage. Husband paid the mortgage on Westover from his FSB account.

On August 10, 2006, Fairway was sold, and the proceeds of approximately $335,000 were deposited into the FSB account. On October 16, 2006, the mortgage on Westover was refinanced, toward which Husband testified that he contributed an additional $284,122 from the FSB account, alleging the funds were from the Fairway sale. The trial court found Husband had sufficiently traced $799,051.04 of the funds used to purchase and refinance Westover as his individual property.

Throughout the marriage, Husband deposited both income from his premarital assets and his compensation in the FSB account. Each month, Husband would write a check to Wife to cover household expenses, which Wife deposited into the BoA account and used to pay family and household expenses. If additional funds were needed, Husband provided them to Wife upon request. Additionally, during the marriage the parties took expensive vacations, remodeled their home, and paid for all the children's private school education. Wife made no objections to any of these expenditures. Marital household expenses exceeded the compensation earned during the marriage.

Separation and Dissolution

The parties separated in February 2010, and Wife filed her First Amended Petition for Dissolution of Marriage on April 30, 2010. When Wife expressed her intent to separate, the parties purchased a jointly titled residence on Baltimore Road, in Kansas City, Missouri (hereinafter “Baltimore”). Husband contributed $198,650.01 at closing on the home, traced to Husband's Schwab account, which was his individual property under the premarital agreement.

The Petition for Dissolution of Marriage was tried over the course of several days. Neither party challenged the validity of the premarital agreement, and each requested that it be enforced. Evidence at trial showed that the parties' children of preschool or school age had all always attended St. Elizabeth's for preschool, and Visitation for school. As a result the children had been with the same friends and peer groups for nearly all their lives. There was evidence Max loved school, his friends and his community. The children were thriving in their community and school environment.

The trial court appointed Maureen Patton, a licensed marriage and family therapist and clinical social worker, to complete a custody assessment and evaluation. She described the children as well-behaved and bright. Wife testified that Max was very good in school and conscientious regarding his schoolwork. She also testified that she believed Visitation was an academically strong school. Based on the evidence adduced, the trial court ordered that the children shall attend Visitation School.

Regarding parenting, Ms. Patton did not make a specific parenting time recommendation to the court. She stated she believed Husband had some excellent parenting skills and that Wife described him as a good father, which Wife confirmed on cross-examination. Ms. Patton testified that it is important for both parents to have significant amounts of time with the children, otherwise the children would miss them. Ms. Patton's overall impression was that the children were doing generally well, and she was impressed with how well the children had done under the circumstances. She noted the children were attached to their parents and the parents were bonded with the children, which was one reason significant time with each parent was vital.

The trial court awarded the parties joint legal and joint physical custody of the children with Wife's residence designated as the address of the children for mail and educational purposes. The trial court adopted its own parenting plan, rather than that proposed by Husband or Wife. The plan gave Husband parenting time with the children every other weekend beginning at 3:00 p.m. on Thursday, or upon release from school, whichever is earlier, and continuing until Sunday evening at 7:00 p.m. Wife was awarded every other weekend, alternating with Husband's weekends, beginning at 3:00 p.m. on Friday, or upon release from school, whichever is earlier, and continuing until Sunday evening at 7:00 p.m. During the week before Wife's parenting weekend, Husband was awarded parenting time on Wednesday, beginning at 3:00 p.m., or upon release from school, whichever is earlier, and continuing until Friday at 8:00 a.m. or the beginning of school if school is in session. During the week after Wife's parenting weekend, Husband was awarded parenting time on Monday, beginning at 3:00 p.m., or upon release from school, whichever is earlier, and continuing until Tuesday at 8:00 a.m. or the beginning of school if school is in session. Each parent was also awarded two non-consecutive seven day vacation periodswith the children, and alternating birthdays and holidays.

As to the division of property, each party presented evidence as to the amount of compensation acquired during the marriage, which, according to the premarital agreement, was to be deposited into a jointly titled account and equally divided upon dissolution of marriage. Rather than determining the amount of compensation acquired during the marriage, the trial court found that all compensation was placed in Husband's FSB account, leading the trial court to conclude that the account became the compensation account contemplated in the premarital agreement. The account also contained individual property of Husband, but his placement of compensation in the account, thereby commingling his individual and marital property, was found by the trial court to reveal his intent that the account become marital property. The...