Henning v. Henning

• Decision Date: 09 April 2002
• Docket Number: No. WD 59580.,WD 59580.
• Citation: 72 S.W.3d 241
• Parties: Rosemary HENNING, Appellant-Respondent, v. Rodney R. HENNING, Respondent-Appellant.
• Court: Missouri Court of Appeals

72 S.W.3d 241

Rosemary HENNING, Appellant-Respondent, v. Rodney R. HENNING, Respondent-Appellant.

No. WD 59580.

Missouri Court of Appeals, Western District.

April 9, 2002.

David H. Johnson, Kansas City, MO, for Appellant-Respondent.

James D. Boggs, Kansas City, MO, for Respondent-Appellant.

Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE and LISA WHITE HARDWICK, JJ.

ROBERT G. ULRICH, P.J.

Rosemary Henning (Wife) appeals the trial court's judgment dissolving her marriage to Rodney Henning (Husband) and distributing property. She claims that the trial court erred in (1) denying her claim for a share of the parties' 1999 income tax refund and (2) failing to award her maintenance. Husband cross-appeals claiming that the trial court abused its discretion in dividing the marital property and debt not disposed of by the parties' mediation agreement. The judgment of the trial court is affirmed, and the case is remanded with directions.

Husband, age 58, and Wife, age 56, were married in October 1989. No children were born of the marriage. Prior to the marriage, Wife was employed by "The House," a gift and clothing shop, as the buyer and manager of the gift department. In May 1984, Husband's retail card shop business, Henning's Card Shops, Inc. (Henning's), purchased "The House" and operated the business under its original name until 1992.

In the spring of 1985, Husband created the position of buyer for Henning's and promoted Wife to the position. During the next five years until her marriage to Husband, Wife worked as the buyer of Henning's; continued to manage "The House"; managed many of the personnel matters for Henning's; assisted in selling stores in Beatrice, Nebraska, and Red Oak, Iowa; and helped open a store in St. Joseph. At the time of the parties' marriage, Wife was earning approximately $55,000 to $60,000 per year and had acquired 1141 shares of Henning's stock. Husband had 16,852 shares of stock at the time of the marriage.

After the parties' wedding in 1989, some of Wife's duties at Henning's changed. She continued to do all of the buying, managed all personnel matters, operated the warehouse and oversaw the office. Wife stopped managing "The House" in 1992 after it was closed and moved to Gladstone. Shortly after the wedding, the company accountant recommended that only one of the parties receive a salary to save in social security taxes. Wife, therefore, did not receive any salary from Henning's from 1991 until 1997. In 1997 and 1998, Wife received a salary, and Husband did not.

At the time of the parties' wedding in 1989, Henning's owned eight retail outlets. During the ten-year marriage, Henning's opened additional shops. Husband and Wife devoted extensive time and energy to the business. Each year of the marriage, they received approximately $250,000 from Henning's, which included salary and payment of many of their expenses including regular house cleaning; all of their automobile expenses; daily lunches; dinners at restaurants two to four times a week; health insurance, deductibles, and co-pays; and all of their personal travel, including pleasure trips. The parties also acquired an additional 6175 shares of Henning's stock during the marriage. Finally, the parties acquired an interest in several brewpubs in Des Moines, Iowa, and in Kansas City. In February 1999, Wife's employment with Henning's was terminated by Husband, and the parties separated. Wife filed her petition for dissolution of marriage in March 1999, and Husband filed his counter-petition. Prior to trial, Husband and Wife entered into a settlement/mediation agreement, which assigned values to and divided much of their marital property. Following trial, the trial court issued its judgment dissolving the parties' marriage. Following a motion by Husband for judgment nunc pro tunc and to amend/reconsider the judgment, the trial court entered its judgment nunc pro tunc. Pursuant to the parties' settlement agreement, the court awarded Husband property valued at $834,434. Wife received property valued at $486,920 and a cash payment from Husband of $173,751.31. The trial court also resolved the remaining issues. Each party received the stock in Henning's that the party acquired before marriage. Husband was awarded the 6175 shares of Henning's stock acquired during the marriage valued by the court at $268,612.50 and was ordered to pay marital debt owed to Henning's in the amount of $558,464.86. Husband was awarded 401(k) and IRA accounts totaling $84,091.26. Wife was awarded 401(k) and IRA accounts totaling $70,358.74.¹ Each party was awarded personal property and household goods in that party's possession. Finally, the trial court denied Wife's claim for maintenance but awarded Wife $15,000 in attorney's fees and restored her maiden name. This appeal by Wife and cross-appeal by Husband followed.

Standard of Review

The judgment of the trial court in a dissolution proceeding will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976); Evans v. Evans, 45 S.W.3d 523, 526 (Mo.App. W.D.2001). The evidence is reviewed in the light most favorable to the trial court's decision, and all evidence contrary to the judgment is disregarded. Evans, 45 S.W.3d at 526. The party challenging the dissolution judgment has the burden of demonstrating error. Taylor v. Taylor, 12 S.W.3d 340, 344 (Mo. App. W.D.2000).

The trial court has broad discretion in distributing property and in determining whether a maintenance award is appropriate. Evans, 45 S.W.3d at 526; Taylor, 12 S.W.3d at 344. The trial court's decision regarding maintenance will not be reversed absent an abuse of discretion. Taylor, 12 S.W.3d at 344. Likewise, an appellate court will only interfere with the trial court's division of property if the division is so unduly weighted in favor of one party as to constitute an abuse of discretion. Id.

I. Wife's Appeal

A. Undistributed Income Tax Refund

In Wife's first point on appeal, she claims that the trial court erred in failing to divide the parties' 1999 income tax refund. She contends that because no evidence was adduced at trial regarding the 1999 income tax refund, the trial court should have reopened the case for reception of such evidence. Wife requests this court to reverse the trial court's judgment and remand the case for an evidentiary hearing as to the nature and extent of the income tax refund and for division of the asset.

In Spauldin v. Spauldin, 945 S.W.2d 665 (Mo.App. W.D.1997), this court dismissed an appeal from a judgment dissolving the parties' marriage because the judgment did not distribute all of the property identified as marital. Id. at 668. It held:

[W]hen undistributed property is discovered before the time for appeal has run, the appellate court, when presented with an appeal raising the issue of undistributed property, must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not rendered a final judgment from which an appeal can be taken.

Id. (quoting Meltzer v. Meltzer, 775 S.W.2d 120, 120 121 (Mo. banc 1989)(quoting State ex rel. McClintock v. Black, 608 S.W.2d 405, 406 (Mo. banc 1980))). Wife complained on appeal that the trial court did not distribute certain property consisting of stock, a life insurance policy with a cash value, proceeds from a contract of the parties, and the parties' interest in four cooperatives. Id. at 667. Although the trial court had evidence before it of the existence of this property and Wife's proposal to set it aside to Husband, it failed to distribute the property, and this court dismissed the appeal. Id. at 668.

The case of Rhodus v. McKinley, 16 S.W.3d 615 (Mo.App. W.D.2000), also involved a claim on appeal that the trial court did not value and distribute certain marital assets in its judgment dissolving the parties' marriage. Id. at 621. In Rhodus, after the commissioner recommended a judgment to the trial court and Husband filed a motion for rehearing in the trial court, the commissioner reopened the case to reconsider division of the parties' property. Id. at 617. At the evidentiary hearing before the commissioner, Wife attempted to introduce evidence regarding bank accounts. Id. at 621. The commissioner sustained an objection to this evidence finding that Wife had not filed a pleading requesting affirmative relief. Id. Wife then made an offer of proof regarding the accounts. Id. This court declined Wife's request for remand to determine the value of and to distribute the undistributed bank accounts because Wife made no pleading requesting affirmative relief and Wife's attempted offer of proof did not establish existence or value of the assets. Id. This court explained that the proper remedy in the case, should Wife have evidence of undistributed property, is a separate suit in equity. Id. (citing Chrun v. Chrun, 751 S.W.2d 752, 755 (Mo. banc 1988)).

The instant case is similar to Rhodus. The issue of the income tax refund was brought to the trial court's attention by Wife in the hearing on Husband's "Motion for Judgment Decree Nunc Pro Tunc and to Amend Judgment and for Reconsideration of Judgment." The stated purpose of the hearing was to identify administrative errors and to allow the trial court to reconsider its judgment based on existing evidence. The motion did not seek the trial court's order to reopen the case for additional evidence. Although Wife did not file a post-judgment motion for the trial court to reopen the case to receive additional evidence, she, through her attorney, argued at the hearing on Husband's motion that the parties received a 1999 income tax refund in the amount of $44,000 or $46,000 that was not addressed in the dissolution decree and that should have been divided equally between the parties pursuant to...