Evans v. Evans

• Decision Date: 01 May 2001
• Citation: 45 S.W.3d 523
• Parties: (Mo.App. S.D. 2001) Frank Joseph Evans, Respondent v. Carmen K. Evans, Appellant WD58236 0
• Court: Missouri Court of Appeals

45 S.W.3d 523 (Mo.App. S.D. 2001)

Frank Joseph Evans, Respondent v. Carmen K. Evans, Appellant

WD58236

Missouri Court of Appeals Western District

05/01/2001

Appeal From: Circuit Court of Buchanan County, Hon. Weldon Clare Judah, Judge

Counsel for Appellant: Michael Harris

Counsel for Respondent: Ronald Ray Holliday

Opinion Summary: Carmen Evans (Wife) appeals the amended judgment dissolving her marriage to Frank Evans (Husband). Wife first argues that the trial court erred in calculating the amount of maintenance, that Husband received a disproportionate share of the marital property, and that the trial court erred in only awarding her $1,000 in attorney fees and expenses.

Division holds: (1) The trial court erred in classifying the payment of certain marital debts as maintenance while also allocating those debts as part of the marital property division. Payment of marital debts cannot be both maintenance and part of the property division. The trial court's intention with regard to how to treat the marital debts cannot be discerned from the record, thus the judgment must be reversed to permit the trial court to properly allocate the marital debts.

(2) The trial court erred in imputing income to Wife for maintenance purposes despite the finding within the Form 14 calculation that no income should be imputed to wife.

(3) The issue of whether the trial court improperly applied the statutory factors in dividing the marital property is not reached, as the reversal due to the improper classification of marital debts will probably require the trial court to revisit that property division.

(4) The trial court did not err in awarding only $1,000 to Wife for her attorney fees and expenses, as that award was within the discretion of the court.

Ronald R. Holliger, Judge

Carmen Evans appeals from the amended judgment dissolving her marriage of 26 years to Frank Evans. There was one minor child nearing college age. Custody was awarded to Husband and there was no award of child support. No issue is raised on appeal concerning child custody or child support. Husband worked throughout the marriage for United Pharmical Company (UPCO), which was originally founded by his father. At the time of trial all stock in the company was held by Husband, his siblings and mother. Husband owned all but 10 of the outstanding voting shares of the company. He served as the company president and was paid a salary including bonuses of approximately $115,000 per year. Wife had virtually no outside employment during the marriage. She had a high school diploma but no further education or vocational training. Wife contends that the trial court erred in the division of marital property in failing to consider the non-marital property of UPCO stock, awarding a disproportionate share of the marital property to Husband, in determining the amount of her necessary living expenses, in fixing the amount of periodic maintenance, and in structuring the maintenance payments to be made to her by Husband. She also complains that the court abused its discretion in ordering Husband to pay only $1000 of her attorney's fees and expenses.

The trial court's judgment set aside to Husband non-marital property valued at $750,000. The gross value of marital property awarded to Wife was $676,333 (43.77 percent). The gross value of marital property awarded to Husband was $868,940 (56.23 percent). Husband was ordered to pay all of the marital debts totaling $173,393 including $16,634 for the Ford Expedition awarded to Wife and $44,676 representing the mortgage debt on the lake house awarded to Wife.¹ Husband was ordered to pay these debts by periodic payments to be "in the nature of spousal maintenance; non-modifiable and terminable upon the completion of their contractual terms." Husband was also directed to provide Wife health insurance coverage for a period of two years or until similar coverage was earlier available to wife at a reasonable cost. No other maintenance was initially awarded. The trial court later timely amended its findings of fact and issued an amended judgment, making two changes to the terms of the original judgment. The amended judgment again ordered Husband to provide health insurance, to pay the car and home mortgages "until the debts are retired." It characterized payment of these obligations as "in the nature of spousal maintenance, not dischargeable in bankruptcy, and deductible to the extent permitted by the Internal Revenue Code; said sums totaling $1,353 per month." The amended judgment also awarded $500 per month as periodic modifiable maintenance.

Wife raises five arguments about the amount and structure of the maintenance award: (1) the trial court failed to consider all of the statutory elements set forth in RSMo 452.335,² (2) the trial court erroneously imputed income to Wife in contradiction of its finding of no actual or imputed income in the Form 14 child support calculation, (3) the judgment contains conflicting and ambiguous language by incorporating marital debts included in the property division as maintenance, (4) the evidence adduced at trial did not support the trial court's imputation of income to wife, and (5) Husband received a double benefit by receiving credits for the payments he was ordered to make on certain debts as maintenance while also receiving credits for those debts in the property division. Husband answers that the trial court considered all necessary statutory factors and there was substantial evidence to support the court's finding that Wife's reasonable and necessary living expenses were $2,851 per month. Husband also argues that the trial court had sufficient evidence to support its imputation of income to Wife in its maintenance calculation. Husband does not respond to the argument made about an apparent conflict between the Form 14 and other findings regarding maintenance concerning imputation of income to Wife.

Wife argues that the language about payment of the mortgage and car debts until they are "retired" is vague and ambiguous. She asks what would be the meaning if either asset, for example, were destroyed and the casualty was covered by insurance. If the debt was satisfied by such a collateral source payment she queries whether the debt would thus be "retired" and that portion of the maintenance obligation terminated. She posits similar uncertainty in the event of a sale of the house or car that would result in existing liens being paid from sale proceeds. Would those debts be "retired," she asks, even though not paid by Husband. He offers no response to these arguments or questions. Wife points out that the property division awards Husband 56.23 percent of the marital property without allocation of the lake house and car debt. In other words, she contends that the marital property division looks equitable only if the value of the assets are "netted out" by the debts. She claims that Husband is then benefited again by the treatment of payment of those debts by him as maintenance. Husband also does not respond to this argument, beyond his suggestion that the trial court's division of property was appropriate within the statutory factors of section 452.335, RSMo.

Wife's second point claims that the division of property is not supported by substantial evidence, is against the weight of the evidence, erroneously declares or applies the law, and constitutes an abuse of discretion. Specifically, she complains that the distribution failed to consider the $750,000 in non-marital separate property received by Husband, and was not justified on the basis of marital misconduct because there was no evidence that any misconduct placed any additional burden upon Husband, and Husband was also guilty of misconduct. She points out that, disregarding debt, Husband received $1,618, 940 in marital and non-marital property while she received just $676,333. Husband responds that Wife received 49.3 percent of the marital property after adjustment for debts which was fair given the trial court's order that Husband pay for the debts on the automobile and lake home awarded to Wife. Husband does not respond to Wife's argument about misconduct. Wife argues that Husband's response demonstrates that Husband is receiving a double benefit, as she claims, by having both the marital property division and the maintenance award include the payment obligation for the very same debts.

In her last point, Wife contends that the trial court's denial of attorneys fees in excess of $1,000 and her expert witness costs is an abuse of discretion and failed to properly consider the parties' respective financial resources. Husband responds that the trial court could have properly considered Wife's misconduct and did not abuse its discretion.

We reverse and remand because the debt payments are improperly characterized as maintenance and the court made inconsistent findings as to whether income should be imputed to Wife.

Standard of Review

For each of the points raised above, the determinations of the trial court cannot be disturbed unless those determinations are not supported by substantial evidence, are against the weight of the evidence, or the trial court erroneously declared or applied the law. Griffin v. Griffin, 986 S.W.2d 534, 536 (Mo. App. 1999); Allen v. Allen, 961 S.W.2d 891, 893 (Mo. App. 1998). The evidence within the record must be reviewed in the light most favorable to the judgment, and all evidence contrary to the judgment must be disregarded. See Allen v. Allen, 927 S.W.2d 881, 885 (Mo. App. 1996). As the trial court is granted broad discretion in the division of property, granting maintenance, and awarding attorney fees, the trial court's decision will not be upset unless the trial court has abused its discretion in fixing those amounts. See Griffin, 986 S.W.2d at 536. We first discuss the trial court's treatment of the debt payments because it demonstrates why we cannot resolve all of the other issues...