Hart v. Hart

• Decision Date: 09 January 2007
• Docket Number: No. WD 66278.,WD 66278.
• Citation: 210 S.W.3d 480
• Parties: Laurie HART, Respondent, v. Mark HART, Appellant.
• Court: Missouri Court of Appeals

210 S.W.3d 480

Laurie HART, Respondent, v. Mark HART, Appellant.

No. WD 66278.

Missouri Court of Appeals, Western District.

January 9, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert E. Arnold, III, Kansas City, MO, for appellant.

Brent L. Winterberg, Kansas City, MO, for respondent.

Before JOSEPH M. ELLIS, Presiding Judge, ROBERT G. ULRICH, Judge and RONALD R. HOLLIGER, Judge.

JOSEPH M. ELLIS, Judge.

Mark Hart ("Husband") appeals from a judgment entered in the Circuit Court of Clay County dissolving his marriage to Laurie Hart ("Wife"). Specifically, Husband challenges the trial court's division of marital property, award of child support, entry of an order regarding payment of the children's post-secondary educational expenses, and award of attorney fees to Wife. For the following reasons, we affirm.

The parties were married on August 5, 1983. Three children were born of the marriage: Kate Hart ("Kate"), born November 14, 1984; Deirdre Hart ("Deirdre"), born November 4, 1986; and Emily Hart ("Emily"), born June 18, 1989. Husband moved to Indiana for employment reasons in the summer of 2003, and Wife stayed in Missouri with the three children, planning to join him later. Husband filed a petition for dissolution of marriage in the State of Indiana on May 17, 2004, which he dismissed on June 4, 2004. The couple formally separated on or about May 22, 2004. Wife filed her petition for dissolution of marriage in the Circuit Court of Clay County on July 12, 2004. Husband entered his appearance on August 6, 2004, and did not immediately retain counsel. The parties executed a Marital Settlement and Separation Agreement ("the Agreement") on October 15, 2004, and filed the Agreement with the court on December 2, 2004. Before the hearing on final disposition could take place, Husband retained counsel and filed a formal rescission of the Agreement with the court. Wife filed a motion to enforce the Agreement, which was denied, and the case was set for trial. Husband filed his Answer and separate Counter-Petition, with leave of court, on February 8, 2005.

The case was tried on August 22, 2005. On November 2, 2005, the trial court entered a judgment and decree dissolving the marriage. In its judgment, the trial court divided the marital property, set aside Wife's non-teacher retirement fund to her as non-marital property, found that both of the parties' Form 14 calculations were rebutted as unjust and inappropriate, awarded Wife $1,500 per month in child support, entered a separate order requiring Husband to pay 66% of the post-secondary educational expenses for each of the children, and awarded Wife attorney fees in the amount of $5,000. This appeal follows.

This Court reviews a judgment in a dissolution proceeding under the same standard applicable to any other court-tried case. Foraker v. Foraker, 133 S.W.3d 84, 92 (Mo.App. W.D.2004). "The judgment will be affirmed unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Id. (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). In making these determinations, this Court views the evidence and all reasonable inferences drawn in the light most favorable to the judgment and disregards all other evidence and contrary inferences. Preston v. Preston, 189 S.W.3d 685, 687 (Mo.App. W.D.2006). This Court defers to the trial court's determinations regarding witness credibility. Foraker, 133 S.W.3d at 92. Our primary concern when reviewing a court-tried case is with the correctness of the result, not the route by which the trial court reached that result. Eckhoff v. Eckhoff, 71 S.W.3d 619, 622 (Mo.App. W.D.2002) (citing Business Men's Assurance Co. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999)). We will affirm the judgment if it is "cognizable under any theory," even if the reasons advanced by the trial court are incorrect or insufficient. Id.

Appellant's first two points deal with the division of property. A trial court has broad discretion in identifying and dividing marital property, and this Court will reverse only if the division is so unduly weighted in favor of one party that it constitutes an abuse of discretion. Travis v. Travis, 163 S.W.3d 43, 46 (Mo.App. W.D.2005). Applying the overall standard of review, we must first determine if the trial court's decision passes the Murphy v. Carron standard, listed above, and then review for abuse of discretion. Nelson v. Nelson, 195 S.W.3d 502, 506 (Mo.App. W.D.2006). An appellate court presumes that a trial court's division of property is correct, and the party challenging the division bears the burden of overcoming that presumption. Id. We presume that the trial court considered all of the evidence in dividing marital property. Milne v. Milne, 138 S.W.3d 162, 169 (Mo.App. W.D. 2004).

A trial court must follow a two-step procedure in dividing the property in a dissolution proceeding: first, it must set apart to each spouse their non-marital property and, second, it must divide the marital property and debts in such proportions as the court deems just after considering all relevant factors. Selby v. Selby, 149 S.W.3d 472, 482-83 (Mo. App. W.D.2004).

Section 452.330.1 provides, in pertinent part, that in fashioning a fair and equitable division of marital property, the trial court is required to consider all relevant factors, including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;

(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

The five statutory factors of § 452.330.1 are not exclusive, and there is no formula determining the weight to be given to the factors in dividing the marital property.

Nelson, 195 S.W.3d at 507 (citing § 452.330.1 R.S.Mo.). The division of property does not necessarily need to be equal, but it must be fair and equitable under the circumstances of the case. Travis, 163 S.W.3d at 46. The trial court must follow two guiding principals inherent in § 452.330: "(1) that property division should reflect the concept of marriage as a shared enterprise similar to a partnership; and (2) that property division should be utilized as a means of providing future support for an economically dependent spouse." Cohen v. Cohen, 73 S.W.3d 39, 54 (Mo.App. W.D.2002).

In his first point, Appellant alleges that the trial court erroneously applied the law when it awarded a disproportionate amount of the marital property to Wife because it (a) failed to take into account the value of Wife's non-teacher retirement fund, and (b) failed to set aside non-marital property before dividing marital property. Wife was awarded approximately 53% ($307,736.50 / $575,989) and Husband was awarded approximately 47% ($268,252.50 / $575,989) of the marital estate.¹ Wife's non-teacher retirement account was valued at $84,000 and was awarded separately to Wife as non-marital property.

The plain language of the judgment states that the trial court did take into account the value of Wife's non-teacher retirement fund before dividing the property:

The non-teacher retirement fund in the name of Mrs. Hart, the Petitioner, is not divisible by qualified domestic relations order. The Court finds that it should be set over to Petitioner. The Court is mindful that it should consider this asset in its division of the parties' other property and the Court has carefully considered its division of property. The Court finds that considering Respondent's marital misconduct and the Petitioner's waiver of maintenance in a long-term marriage with a large discrepancy in incomes, that it is appropriate to award the non-teacher retirement account to Petitioner.

(Emphasis added.) In addition to the plain language of the judgment, we presume that the trial court considered all of the evidence in dividing marital property. Milne, 138 S.W.3d at 169. Husband's assertion that the trial court determined that "Wife's separate property should be given no consideration," based on the language listed above, is clearly an incorrect reading of that language.

Husband's contention that the trial court failed to follow the proper order in dividing marital and non-marital property appears to focus on the order of the language of the judgment itself. Wife's non-teacher retirement account is the only non-marital property identified by the parties. Husband relies on the fact that the trial court's discussion of its treatment of the non-teacher retirement fund appears after its listing of marital property awarded to Wife in the judgment. Section 452.330.1 imposes no requirements on the order of the language of the judgment itself, as long as the trial court follows the proper procedure in arriving at that judgment. We presume that the trial court's division of property is correct, and the party challenging the division bears the burden of overcoming that presumption. Nelson, 195 S.W.3d at 506.² Husband fails to meet his burden of overcoming the presumptions in favor of the trial court's decision regarding division of property and Wife's non-teacher retirement fund, especially in light of the trial court's statements reflecting that it did indeed consider the non-teacher retirement fund in dividing the marital property. We find no abuse of discretion in either case. Point I is denied.

For his second point of error, Appellant alleges that the trial court erroneously applied the law when it awarded a disproportionate amount of the marital property to Wife because it (a) improperly used Husband's...