Halper v. Halper

• Decision Date: 14 July 2020
• Docket Number: ED 108064
• Citation: 604 S.W.3d 904
• Parties: Steven C. HALPER, Appellant, v. Karen L. HALPER, Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

604 S.W.3d 904

Steven C. HALPER, Appellant,

v.Karen L. HALPER, Respondent/Cross-Appellant.

ED 108064

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: July 14, 2020

OPINION

Lisa P. Page, Judge

Steven C. Halper ("Father") appeals the judgment after trial upon his motion for contempt and motion to enforce judgment and Karen L. Halper's ("Mother") motion for contempt, motion to determine sums due and owing, and petition in equity. Mother crossappeals. We affirm.

BACKGROUND

The parties have an extremely complicated and protracted history of litigation.¹ The current difficulties began in 2011 when the parties reached a settlement in their dissolution proceeding, which was commemorated on the record in court dissolving their marriage and dividing their substantial separate and marital property (" Halper I "). Subsequently, the parties were unable to agree upon final settlement documents. Mother sought a new trial date and Father moved to enforce the settlement. The trial court denied both motions and found that "sufficient evidence had been presented through the testimony of the parties that a judgment could be entered."

Based on this record, the trial court entered its judgment and decree of dissolution of marriage on February 2, 2012. Father was awarded sole legal and physical custody of their two children. Neither party requested child support, thus the trial court deemed it was not "reasonable or necessary." However, the judgment provided "both [Father] and [Mother] shall be responsible for one-half of any costs for tuition, room, board, books, and fees for both minor children to attend any college for a period of four years."

At the time of the dissolution, the parties jointly owned approximately eighty-two percent of SKMDV, Inc., which had a significant interest in a pending legal malpractice suit. The dissolution judgment was silent as to the specifics, but referenced a large account set aside to fund the litigation. The parties stipulated and the trial court awarded Father sixty percent and Mother forty percent of any of the proceeds from the lawsuit, with each party receiving "one-half of the proceeds remaining" in the account at the conclusion of the litigation.² Mother subsequently attempted to repudiate the settlement as an incomplete division of assets, which was rejected by the trial court.

This court affirmed the judgment in Halper v. Halper, 391 S.W.3d 1 (Mo. App. E.D. 2012). In the memorandum supporting the order, our court held that Mother waived her right to raise the issue regarding any property the trial court had inadvertently omitted from the judgment because she failed to file an after-trial motion requesting the trial court to amend its judgment or enter a new one. As a result, Mother's only option was to file a suit in equity to address her undivided property allegations.

Mother filed a new and separate cause of action in equity (" Halper II "), asserting multiple claims.³ However, her sole issue related to the litigation account was regarding payment of her personal attorney fees. At trial, Father conceded the parties agreed her lawyer would be paid $1,500 from the litigation account. The trial court's September 3, 2014 judgment ordered Mother's attorney paid "so long as the litigation continues and there are funds in the litigation escrow account. Thereafter, each party shall bear any fees they incur related to the litigation." The pleadings did not raise—and the judgment did not consider—the eventuality of insufficient funds in the litigation account.

Six months later Mother commenced the cause of action underlying this appeal when she filed a contempt motion in the dissolution case on March 27, 2015 (" Halper III "). Mother also filed a second petition in equity, asserting for the first time that the litigation account was exhausted. She requested each party be required to continue to fund the account according to the 60-40 proceed division in Halper I. On March 26, 2016, Father filed his motion for contempt, and Mother filed a motion for amounts due and owing on April 5, 2016. Father filed his motion for amounts due and owing and a motion to enforce the judgment on November 28, 2016, specifically seeking reimbursement in the amount of $149,089 for their daughter's ("Daughter") college expenses, even though she had graduated approximately six months earlier.

At trial, Mother testified that neither Father nor Daughter ever provided her with any documentation regarding her continued eligibility for support as required by Section 452.340.⁴ Father did not dispute Mother's testimony and submitted Daughter's entire deposition—over Mother's objection—for the proposition Daughter had reasonable grounds to not to comply with the statute and disclose this information due to her contentious relationship with Mother.

As to the litigation account, Father testified he was receiving sixty percent of the proceeds because he was managing the lawsuit on behalf of the company, and the corporation's bylaws dictate that they equally bear any costs. Other evidence suggested the parties each historically paid half of such expenses. On April 16, 2019, the trial court issued its judgment denying all contempt motions. The court found that Daughter failed to provide statutory notice sufficient to obligate Mother to pay college expenses and denied Father's motion to enforce the judgment. Finally, the trial court found the September 3, 2014 judgment in Halper II resolved the litigation fund issue, but clarified the parties shall equally fund future litigation expenses.

This appeal follows.

DISCUSSION

Father raises two points on appeal and Mother cross-appeals. Father's first point contends the trial court made a mistake of law and acted without jurisdiction by terminating Mother's child support obligation because no party petitioned for such termination nor was it raised as an affirmative defense by Mother. In his second point on appeal, Father argues the trial court abused its discretion by terminating Mother's child support obligation because it was against public policy to apply the statutory notice requirements governing the payment of college expenses to Daughter. In her cross-appeal, Mother argues the trial court erred in its determination that both parties shall bear an equal share of future litigation expenses because it is an unequal division of marital property and debts, unsupported by law or fact.

Standard of Review

Our court applies the standard of review set forth in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) in a court-tried action. Hazelbaker v. Hazelbaker, 475 S.W.3d 143, 146 (Mo. App. E.D. 2014). "Thus, we will affirm the court's judgment unless it is not supported by substantial evidence, it is against the weight of the evidence, or the decision erroneously declares or applies the law." Pogue v. Pogue , 590 S.W.3d 384, 386 (Mo. App. E.D. 2019). This court is primarily concerned with the correctness of the result decided, not the route taken to reach it; thus, the trial court's judgment will be affirmed if it is sustainable on any ground supported by the record. Wuebbeling v. Wuebbeling , 574 S.W.3d 317, 327 (Mo. App. E.D. 2019). Moreover, "we defer to the trial court's credibility determinations because of its superior position to observe the sincerity and character of witnesses, as well as intangibles not evident from the record." S.F.G. by Next Friend A.E.R. v. A.M.G. , 591 S.W.3d 907, 916 (Mo. App. E.D. 2019) (internal quotations omitted).

Point One

In point one, Father contends the trial court made a mistake of law and acted without jurisdiction by terminating Mother's child support obligation because no party petitioned the trial court for such termination nor was it raised as an affirmative defense.

Analysis

As a preliminary matter, we must discuss whether Father's first point was properly preserved. "Under Rule 78.07,⁵ with a few exceptions, all allegations of error must be properly presented in a motion for new trial to be preserved for appellate review." Smith v. Brown & Williamson Tobacco Corp. , 410 S.W.3d 623, 641 (Mo. banc 2013). However, Rule 78.07(a)(1) specifically provides that "[q]uestions of jurisdiction over the subject matter" need not be included in such motion to be preserved. Since Father characterizes his point on appeal as one of jurisdiction, which falls under an exemption of Rule 78.07, it did not need to be included in his motion for new trial to be preserved and we are required to review it on the merits.

The Supreme Court of Missouri has held that subject matter jurisdiction of Missouri's courts is directly governed by Article V of the Missouri Constitution. J.C.W. ex rel. Webb v. Wyciskalla , 275 S.W.3d 249, 253 (Mo. banc 2009). Specifically, Article V, section 14 provides that "[t]he circuit courts shall have original jurisdiction over all cases and matters, civil and criminal." Id. (emphasis in original). Pursuant to the Supreme Court decision in Webb , the trial court had "subject matter jurisdiction and, thus, ha[d] the authority to hear this dispute." Id. at 254.

Since the trial court had jurisdiction to hear this case and Father failed to assert his claim that no party petitioned for termination of child support nor was it raised as an affirmative defense to the trial court, we decline to review the remainder of Father's point because "[i]t is well recognized that a party should not be entitled on appeal to claim error on the part of the trial court when the party did not call attention to the error at trial and did not give the court the opportunity to rule on the question." Brown v. Brown , 423 S.W.3d 784, 787 (Mo. banc 2014).

At trial, Father never raised an objection to any evidence supporting termination of Mother's support obligation. Furthermore, Father—not Mother—admitted Daughter's deposition testimony at trial. Finally, Father failed to raise this issue in his motion for new trial or to amend the judgment. Our court will not...