Dunn v. Dunn

• Decision Date: 17 October 2017
• Docket Number: WD 80123
• Citation: 536 S.W.3d 304
• Parties: Rebecca L. DUNN (Now Wallingford), Appellant, v. Terrence P. DUNN, Jr., Respondent.
• Court: Missouri Court of Appeals

536 S.W.3d 304

Rebecca L. DUNN (Now Wallingford), Appellant,
v.
Terrence P. DUNN, Jr., Respondent.

WD 80123

Missouri Court of Appeals, Western District.

OPINION FILED: October 17, 2017
Motion for Rehearing and/or Transfer to Supreme Court Denied November 16, 2017
Application for Transfer Denied January 23, 2018

Nancy A. Garris, Blue Springs, MO, for appellant.

Nathalie C. Elliott, Kansas City, MO, for respondent.

Before Division Two: Anthony Rex Gabbert, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Rebecca Wallingford ("Wallingford") appeals the circuit court's entry of summary judgment in favor of Terrence Dunn ("Dunn") on his Motion to Enforce the Property Settlement Agreement and Reimbursement of Maintenance and Attorney Fees. Further, Wallingford appeals the court's grant of Dunn's Motion to Set Off Amounts Due Between Parties and denial of Wallingford's Motion to Determine Amounts Due following a trial on these

536 S.W.3d 306

issues. The order granting the motion for summary judgment awarded Dunn $16,062.75 in reimbursement for maintenance paid after Wallingford's remarriage and attorney's fees. Wallingford argues that the court erred in not disclosing an alleged conflict of interest, granting summary judgment, setting-off Dunn's award against a future payment to Wallingford provided for in the property settlement, and denying Wallingford's Motion to Determine Amounts Due. We affirm.

Factual Background¹

A Judgment and Decree of Dissolution of Marriage ("Underlying Judgment") between Wallingford and Dunn was entered on March 18, 2013, pursuant to a settlement agreement entered into between the parties as to all issues. The Underlying Judgment incorporated the parties' Joint Parenting Plan and Separation and Property Settlement Agreement. There were two children born of the parties' marriage. The parties were awarded joint legal custody and joint physical custody of the minor children. A Form 14 establishing a presumed child support amount of $850 per month, was determined to be unjust and inappropriate based on the request and agreement of both parties. Pursuant to the Underlying Judgment, Dunn was ordered to pay Wallingford child support in the sum of $2,000 per month, as well as, to pay other designated expenses relating to the children. Dunn was also ordered to pay Wallingford non-modifiable decretal maintenance in the sum of $2,000 per month for forty-eight consecutive months. Termination of maintenance would occur upon the death of either party, Wallingford's remarriage, Wallingford's co-habitation in a marriage-like relationship, or the expiration of forty-eight consecutive months, whichever was first to occur. In order to equalize the division of property, Dunn was ordered to make equalization payments to Wallingford: $70,000 on January 30, 2013; $50,000 on January 30, 2014; $50,000 on January 30, 2015; and $30,000 on January 30, 2016.

Further, pursuant to the Underlying Judgment and the settlement agreement of the parties, the parties were to complete two joint tax returns for 2012. The first tax return was to be the actual tax return to be filed with the IRS, and contain Dunn's S-Corporation pass-through income and the corporation's cash distribution to pay for the taxes on the pass-through income. Dunn was to pay any deficiency or retain any refund from the first tax return. The second tax return, which was referred to in the settlement agreement as the "Pro Forma Tax Return," was not to be filed with the IRS and was not to include Dunn's pass-through income from the S-Corporation or the cash distribution from the same. Based on the Pro Forma Tax Return, Dunn was to pay Wallingford fifty percent of any potential refund reflected in the Pro Forma Tax Return. The Pro Forma Tax Return which was prepared showed a $0 refund.²

Dunn was notified in 2013 that Wallingford was planning to remarry. The parties orally agreed that upon her remarriage the maintenance obligation would cease

536 S.W.3d 307

and the child support payment would be modified to the amount of $3000 per month. Dunn sent multiple drafts of a Joint Motion and Stipulation to Modify Judgment and Decree of Dissolution of Marriage to Wallingford. On October 2, 2013, Dunn sent a revised draft, which contained a provision that Dunn's obligation to pay spousal maintenance would terminate on October 31, 2013, and that child support would be modified to $3,000 per month commencing November 1, 2013. Wallingford signed none of these drafts. Wallingford remarried on November 23, 2013 but concealed the date of her remarriage from Dunn and did not record her marriage license until April 2014. Wallingford denied being married until Dunn presented her with a copy of the recorded marriage license in April 2014, which showed that a wedding ceremony occurred on November 23, 2013. Dunn had paid spousal maintenance through April 2014 in the amount ordered by the Underlying Judgment even though his maintenance obligation terminated by operation of law on Wallingford's remarriage on November 23, 2013.

On May 13, 2014, Dunn filed a Motion to Enforce Separation and Property Settlement Agreement and for Reimbursement of Maintenance and Attorney's Fees, which was denied.³ Dunn then filed a Motion to Reconsider Order Denying Respondent's Motion to Enforce Separation Agreement and Property Settlement Agreement and For Reimbursement of Maintenance and Attorney's Fees, which was also denied.

On September 29, 2014, Wallingford filed a counter Motion to Modify Child Support, which was ultimately denied by the trial court.⁴ On January 15, 2015, Dunn filed a Motion to Terminate Maintenance and For Restitution Or, in the Alternative, To Modify Judgment and Decree of Dissolution of Marriage. Dunn then filed a Motion for Summary Judgment on that motion. The court granted summary judgment and Dunn was awarded $10,000 in reimbursement for the overpayment in maintenance and $6,062.75 in attorney's fees. Dunn's Motion to Terminate Maintenance and For Restitution Or, in the Alternative to Modify Judgment and Decree of Dissolution of Marriage was then dismissed, as it was no longer at issue.

Dunn then filed a Motion for Set-Off of Amounts Due Between Parties. The court granted the motion, which allowed the $16,062.75 Dunn was awarded in the summary judgment for reimbursement and attorney's fees to be set-off against the last $30,000 Dunn still owed Wallingford under the property division.

Wallingford also filed a Motion to Determine Amounts Due regarding the Pro Forma Tax Return. At trial, Wallingford asked the court to interpret the settlement agreement and determine what amount Dunn owes pursuant to the Pro Forma Tax Return. The court denied Wallingford's motion finding that the Pro Forma Tax Return reflected a $0 refund due. Wallingford appeals from the above judgments and rulings.

Analysis

Wallingford raises four points on appeal. In Point One, Wallingford argues that the

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court denied her due process of law because the trial judge did not disclose an alleged conflict of interest prior to the presentation of evidence. Wallingford claims in Point Two that the court erred in granting summary judgment against Wallingford. In Point Three, Wallingford contends that the court erred in granting Dunn's Motion for Set-Off Amounts Due Between Parties. In Point Four, Wallingford argues the court erred in denying her Motion to Determine Amount Due.

Point One

Wallingford argues in Point One that the court denied her due process of law because the trial judge had a conflict of interest and did not disclose that she had "within the last three or four months, award [sic] a contract worth Three Hundred Eleven Million Dollars ($311,000,000,000.00) to J.E. Dunn Construction Group from which Pat Dunn received the overwhelming majority of his income." Wallingford claims this alleged award creates an appearance of impropriety, and if she had been made aware of this prior award, she would have requested a change of judge.

Missouri Supreme Court Rule 2-2.11(A)⁵ "sets the standard for when a judge should recuse in a proceeding." Anderson v. State , 402 S.W.3d 86, 91 (Mo. banc 2013). " Rule 2-2.11(A) provides that ‘[a] judge shall recuse himself or herself in any proceeding in which the judge's impartiality might reasonably be questioned.’ " Id. It is presumed that a judge acts with honesty and...