Elrod v. Elrod

• Decision Date: 31 May 2006
• Docket Number: No. 26921.,26921.
• Citation: 192 S.W.3d 738
• Parties: Thomas A. ELROD, Jr., Plaintiff-Respondent v. Cherie Renee ELROD, Defendant-Appellant.
• Court: Missouri Court of Appeals

192 S.W.3d 738

Thomas A. ELROD, Jr., Plaintiff-Respondent v. Cherie Renee ELROD, Defendant-Appellant.

No. 26921.

Missouri Court of Appeals, Southern District, Division One.

May 31, 2006.

Thomas M. Benson, Lowther Johnson, LLC, Springfield, for appellant.

J. Kent Robinson, Williams, Robinson, Rigler & Buschjost, P.C., Rolla, for respondent.

JOHN E. PARRISH, Judge.

Cherie Renee Elrod (wife) appeals a judgment in an action for dissolution of marriage. This is the second time this case has been before this court. See Elrod v. Elrod, 144 S.W.3d 373 (Mo.App.2004) (Elrod I). Following remand, the trial court entered judgment dividing marital property and marital debt and denying wife's request for maintenance. This court affirms in part, reverses in part, and remands for further proceedings as hereafter directed.

Thomas A. Elrod, Jr., (husband) brought this action for dissolution of marriage. Elrod I sets forth facts relative to the issues that were before the court in that appeal. Those facts will not be repeated in this opinion unless necessary to explain issues raised by this appeal. Elrod I may be reviewed in conjunction with this opinion for a more complete understanding of the circumstances of the case. The issues the trial court was to determine following the remand ordered by Elrod I were the division of marital property and marital debt, and wife's request for maintenance. The trial court heard additional evidence, after which it denied wife's request for maintenance. It divided marital property and marital debt in the net amount of $354,568 as follows:

Husband Wife Total Marital property $ 511,060 $167,827 $678,887 Marital debt (244,948) ( 79,371) (324,319) Cash payment ordered ( 52,000) 52,000 _________ _________ _________ Net distribution $214,112 $140,456 $354,568 Percent of net distribution 60% 40%

The judgment set over non-marital property in the amount of $33,000 to husband and $47,300 to wife.

"`On appeal of a dissolution of marriage proceeding, [this court] review[s] the evidence in the light most favorable to the trial court's decision.'" Reynolds v. Reynolds, 109 S.W.3d 258, 265 (Mo.App.2003), quoting Taylor v. Taylor, 12 S.W.3d 340, 344 (Mo.App.2000).

When reviewing an appeal of a dissolution of marriage proceeding, "[t]his court will review the judgment of the trial court under the standard of review applicable to any other court-tried case." Eckhoff v. Eckhoff, 71 S.W.3d 619, 622 (Mo.App.2002). The judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares of applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). This court defers to the trial court's determination of the credibility of witnesses. David v. David, 954 S.W.2d 611, 614 (Mo.App.1997). Additionally, "[t]he party challenging the dissolution decree has the burden of demonstrating error." Taylor, 12 S.W.3d at 344.

Reynolds, supra, at 267.

Wife presents four points on appeal. Point I argues that the trial court erred in denying wife's motions for continuance of the trial following remand; that "the court abused its discretion in that there was sufficient evidence in the record that wife was unavailable for trial because she was admitted to Phelps County Regional Medical Center on the date of trial and was receiving treatment and further in that said denial substantially affected the outcome of the trial on the remanded issues in that the evidence wife would have presented at said trial was material."

This court finds no copy of a motion for continuance in the legal file that bears a signature of wife or her attorney, although there is reference to wife filing a motion for continuance. The case was scheduled for hearing on December 20, 2004. A typewritten entry on the copy of the trial court's "CASE HISTORY" recites:

12/20/04 Motion Filed Motion for Continuance Attorney for Defendant 12/20/04 OVR

Another entry dated "12/20/04" appears in the "CASE HISTORY" that states:

CAUSE IS CALLED. J. KENT ROBINSON APPEARS WITH PLANTIFF, THOMAS ELROD. JAMES THOMAS APPEARS ON BEHALF OF CHERI [SIC] ELROD WHO DOES NOT APPEAR. JAMES THOMAS FILES MOTION FOR CONTINUANCE. SAID MOTION IS DENIED . . . .

A third entry in the "CASE HISTORY" dated "12/20/04" recites the following:

Comes now Respondent by and through her attorney, James L. Thomas and request [sic] that this matter be continued based upon the following:

1. That the Respondent missed two appointments last week at lawyer's office;

2. That on late Friday Dec 17, 2004, Respondent telephone [sic] James L. Thomas (Respondent's Office) and informed the office that she was in Phelps Regional Medical Center (hospital)

3. That pursuant to the Court's Order James L. Thomas went to Phelps County Regional Hospital and attempted to locate the respondent

4. Admitting advised James L. Thomas that respondent was in room 128 at Phelps Regional Hospital.

5. James L. Thomas went to medical records and picked up a Phelps County Regional Medical Center Authorization for release of information.

6. James L. Thomas went to the nurse's station for Room 128. The nurse stopped James L. Thomas was advised that Ms. Elrod was not in her room and was receiving treatment.

7. The nurse would not allow James L. Thomas to locate respondent nor would the nurse take the medical release to respondent.

Wherefore, James L. Thomas, Attorney for Respondent requests a continuance. /s/James L. Thomas, Attorney for Respondent.

The name of the attorney is not handwritten but is typewritten as a facsimile signature as shown above.

At the start of the court proceedings the morning of December 20, 2004, the trial judge stated to wife's attorney, "Mr. Thomas, you filed this morning a Motion to Continue. It should be addressed first." Thereafter, wife's attorney stated he had entered his appearance November 24, 2004, and requested the case be continued from December 1 to December 20. He stated that the mandate in Elrod I "was handed down September 28th, 2004. . . [s]o we're within 90 days from the Mandate." He then recited essentially what appears in the typewritten entry quoted above. At the conclusion of his remarks, wife's attorney requested a continuance. Husband objected to the request. The trial judge observed that it was conjecture why wife was not present in court. He denied the request for continuance.

Rule 65.03 requires:

An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person setting forth the facts upon which the application is based, unless the adverse party consents that the application for continuance may be made orally. In any application for continuance made within thirty days of the date the matter is scheduled to be heard, the lawyer shall certify that the party for whose benefit the motion is filed has been consulted, that the party is aware of the contents of the motion, and the party's position with respect to the motion.

Even if the typewritten statement included in the trial court's case history is considered as an application for continuance, it is neither accompanied by an affidavit nor signed as Rule 55.03(a), as it existed on the trial date, required. Rule 55.03(a) required every pleading and other paper to be signed by at least one attorney of record in the attorney's individual name; that each paper state the signer's address, Missouri bar number, and telephone number, if any. The rule provided that "[a]n unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party."¹

Denial of a request for continuance is seldom reversible error. In re P.D., 144 S.W.3d 907, 911 (Mo.App.2004). Failure to comply with requirements of Rule 65.03 is sufficient grounds for the trial court to deny a motion for continuance. Id. Point I is denied.

Point II contends "[t]he trial court erred by considering the potential tax burden of `rolling stock' assets awarded to husband because said consideration is not supported by the evidence and is against the weight of the evidence in that husband's expert testified that the tax liability would occur only upon the sale of each asset and in that the trial court did not order the sale of said assets nor was there any evidence presented at trial that any such sales were likely to occur." Wife argues that "said consideration of the potential tax burden resulted in an overall unfair and inequitable distribution of the property and debt."

The judgment rendered following remand and additional evidence, after noting that the trial court considered relevant factors "including those set forth in Section 452.330, RSMo., 2000," stated additional matters taken into consideration in the division of marital property and debt. The trial court noted that it "additionally [took] into consideration the following:"

a. Each of the "rolling stock" assets awarded to Husband carries with it a potential tax burden which, according to Husband's expert, has the effect of reducing the value of each of such asset in the hands of Husband.

b. This tax burden resulted from accelerated depreciation taken on the assets during the marriage which had the effect at the time of reducing the tax liability of the parties thereby benefiting both Husband and Wife.

c. The amount of this tax burden was testified to by Husband's expert based upon an assumed sale as of the date on which the marriage of the parties was dissolved d. The precise amount of this tax burden will change with time and will not be precisely determined until the date on which each such asset is actually sold.

In Elrod I, the trial court awarded husband credit for "a marital debt" for future tax liability of $78,200. Wife complained in that appeal that the trial court erred in awarding husband a marital debt for that amount of future tax liability. This court...