Heineman v. Heineman

• Citation: 768 S.W.2d 130
• Decision Date: 31 January 1989
• Docket Number: No. WD,WD
• Parties: Paul L. HEINEMAN, Appellant, v. Lou A. Charno HEINEMAN, Respondent. 39706.
• Court: Court of Appeal of Missouri (US)

Page 130

768 S.W.2d 130

Paul L. HEINEMAN, Appellant, v. Lou A. Charno HEINEMAN, Respondent.

No. WD 39706.

Missouri Court of Appeals,

Western District.

Jan. 31, 1989.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 28, 1989.

Application to Transfer Denied

May 16, 1989.

Howard E. Bodney, Overland Park, Kan., for appellant.

Darrell L. Havener, Richard W. Miller, James B. Betterman, Kansas City, for respondent.

Before KENNEDY, C.J., and MANFORD and BERREY, JJ.

KENNEDY, Chief Judge.

Husband Paul L. Heineman and wife Lou A. Charno Heineman both appeal from a "final decree regarding property and other issues" dated June 23, 1987. The decretal provisions in dispute relate to maintenance to be paid by husband to wife; allocation of marital and nonmarital property; wife's alleged breach of antenuptial agreement in making excess gifts to her children; and wife's attorney's fees to be paid by husband.

An earlier decree, dated December 30, 1986, dissolved the marriage of the parties and no appeal has been taken therefrom.

Husband also appeals an order dated December 30, 1986, allowing to wife attorney's fees pendente lite of $56,578.50 and expenses pendente lite of $5,000.

The parties were married June 8, 1979. Husband was a top-level partner in a large engineering firm. Wife was an eminent portrait photographer and the proprietor of a photographic studio. Each had been married before and each had children by a previous marriage or by previous marriages. One of wife's children, a daughter 16 years old at the time of the marriage, is spoken of as living in the household for some or all of the time of the marriage.

The parties were separated June 2, 1983, after approximately four years' marriage. The dissolution case was filed by husband on June 3, 1983.

Before their marriage the parties had entered into an antenuptial agreement which they agree is valid and binding. ¹ The agreement purported to list all the property each of them owned. It provided that in the event of a divorce, each was to retain the property owned by himself or herself at the time of the marriage. Marital property would be divided equally between them. The agreement contemplated that the couple would initially live in a residence belonging to the wife. (In fact they continued to live in wife's residence during the entire time they lived together.) Each of them would contribute to the payment of household expenses. Wife waived any maintenance, support or alimony in case of divorce, except as to one-half the amount by which husband's E & U ("earned and uncollected") account with Howard Needles Tammen & Bergendoff ("HNTB") should increase during the marriage of the parties. HNTB was the engineering firm in which husband was a partner.

Wife's property listed on a schedule attached to the agreement totaled $425,732 in value, net of a "reconstruction loan" of $37,000. Not included in the list of assets was wife's photographic studio, a sole proprietorship, although it was mentioned and specifically provided for in the agreement. A studio balance sheet attached to the agreement shows it to have had a negative net worth of $3,912.25.

Husband's list showed assets of $1,883,516 and liabilities of $349,900. The liabilities included: "Alimony payments in future per court order", $307,450. The assets included at a valuation of $1,537,250 an item called "E & U" under the head "HNTB accounts".

We will notice pertinent parts of the agreement more closely as we take up the specific items in the decree appealed from.

The first matter of dispute between the parties is the court's award of maintenance to the wife. The court's aim and purpose in the award of maintenance was to implement the antenuptial agreement with respect thereto. That approach is approved by both parties, but each, in different particulars, contends that the court has failed to follow the terms of the agreement.

The antenuptial agreement provides:

In the event of a divorce ... (t)o the extent that the E & U account has increased if any, at such time, as compared to its amount at the time of the execution of this Agreement, Paul agrees to pay support payments to Lou in an amount equal to one-half of such increase; said payments will be payable over the remaining life of the E & U Account if said life is not less than three years, but otherwise such amount will be paid over a period of three years.

The antenuptial agreement describes the E & U account in the following terms:

At the present time Paul is a partner in the engineering firm of Howard Needles Tammen and Bergendoff. Under the provisions of the partnership agreement of that firm (as said partnership agreements are modified annually), it is presently provided that an account is set up on the books of the partnership which refers to the earned and uncollected profits of certain contracts executed and performed by the partnership, in whole or in part, during the years in which each of the various partners were active partners in such firm. It is recognized that by subsequent amendment of the partnership agreement, that account may be abolished in its entirety or may be substantially modified or reduced. It is further recognized that, even without the modification of the partnership agreements, no partner has a vested interest in such account until he retires or dies as an active or retired partner and until he actually receives in cash the amount of earned and uncollected profits referred to on said account. It is recognized that the figure which appears on said account is merely an estimate and is subject to material revision depending on the profitability of various contracts and further that in any given year the partnership may withhold up to 25% of the annual amount owing to any retired partner or the estate of a deceased partner on account of such payments. For all of these reasons, it is agreed by the parties that said account, and the amounts of money referred on said account, do not constitute any kind of property whatsoever for this Agreement except and unless and until: (a) the amount of such account as reflected on the records of said partnership shall increase over and above the figure as reflected on the attached Exhibit A which is computed as of April 28, 1979, and the amount of such increase shall be treated as hereinafter set out; and (b) until such account results in actual cash being received by Paul after retirement or by his estate after his death, which such cash upon receipt during the marriage shall be considered to be and shall become marital property ...

In the section dealing with the consequences of a divorce, the antenuptial agreement goes ahead to say:

It is recognized that the E & U Account is only payable (without interest) over a period of ten years after death or retirement of a partner, and is unfunded and payable only out of the earnings of the said partnership. Any support payments to be made to Lou in an amount tied to the amount of the increase of such account would only be payable to her as and when same would be otherwise distributable to Paul by the partnership ...

The antenuptial agreement valued the E and U account as of April 28, 1979, at $1,537,250. The court fixed the closing date for valuation of the account as December 31, 1984. At that time the E and U account had grown to $2,566,534.62, an increase of $1,029,284.62 over the antenuptial agreement valuation.

The cutoff date of December 31, 1984, presents the first bone of contention. Wife in her appeal contends that the cutoff date should be December 30, 1986, the date of the decree dissolving the marriage, by which time the E and U account had grown to $3,576,426.70. She bases her argument upon the language of the antenuptial agreement which is that "in the event of a divorce", wife will receive support payments "to the extent that the E & U account has increased if any at such time".

During the course of the lengthy, intermittent trial the court on November 20, 1984, ordered that the ending valuation date would be December 31, 1984, a date urged by wife. At the time, the designation of December 31, 1984, appeared advantageous to the wife. The husband was contending for a December 31, 1983 ending date. (The account normally was valued only on December 31 of each year.) The parties had been separated since June 2, 1983, and the dissolution case had been pending since June 3, 1983. By fixing this cutoff date at which the E and U account would be valued, neither party could gain or lose by attempting to hasten or to delay the dissolution decree. The E and U account might increase or decrease during an extended time, so that either party could gain or lose by the fixing of the cutoff date. Neither party was denying the irretrievable breakdown of the marriage, so that part of the decree was uncontested and routine. It is true that the actual dissolution of the marriage was delayed for two years from the ending date of December 31, 1984, far longer than either party contemplated at the time the ending date was fixed, but we hold that the wife is estopped to complain of the court's fixing a cutoff date urged by her. Vorhof v. Vorhof, 532 S.W.2d 830, 832 (Mo.App.1975); Medlicott v. Medlicott, 617 S.W.2d 576, 580 (Mo.App.1981).

Wife's contention for a December 30, 1986 ending date is therefore rejected.

We turn to husband's challenges to the support provisions of the decree.

The dissolution of the marriage was decreed, as noted above, on December 30, 1986. On December 31, 1986, husband retired. At that time the E and U account became vested, subject to annual adjustments in the account and subject to the sufficiency of HNTB's profits for payment. Husband at that time became entitled to the payment of the amount of his share in the E and U account over a term of 10 years, if the earnings of HNTB were sufficient to pay the same. At the time of the June 23, 1987, final decree, husband had received five monthly...