Hilligardt-Bacich v. Bacich, ED 85185.

• Decision Date: 18 October 2005
• Docket Number: No. ED 85185.,ED 85185.
• Citation: 174 S.W.3d 11
• Parties: Marilyn R. HILLIGARDT-BACICH, Petitioner/Appellant, v. Robert W. BACICH, Respondent/Respondent.
• Court: Missouri Supreme Court

174 S.W.3d 11 Marilyn R. HILLIGARDT-BACICH, Petitioner/Appellant,
v.
Robert W. BACICH, Respondent/Respondent. No. ED 85185. Missouri Court of Appeals, Eastern District, Division Four. October 18, 2005.

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W. Scott Pollard, Florissant, MO, for appellant.

Michael Frederic Avioli, St. Louis, MO, for Respondent.

SHERRI B. SULLIVAN, J.

Introduction

Marilyn R. Hilligardt-Bacich (Wife) appeals from a trial court judgment entered in a dissolution of marriage action. Wife alleges trial court error in the trial court's findings of fact and division of property. We reverse and remand for further proceedings.

Factual and Procedural Background

Wife, born in 1952, and Robert W. Bacich (Husband), born in 1948, were married in July 1985 and were separated in October 2002. No children were born of the marriage. In May 2003, Wife filed a Petition for Dissolution of Marriage, to

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which Husband filed an Answer and Cross Petition. Under Rule 73.01,¹ both parties requested the trial court to issue findings of fact, and the transcript indicates that the trial court was aware of the parties' requests. Wife's request included the following:

1. That the Court prepare a brief opinion containing a statement of the grounds for its decision and the method of deciding how the award of the division of property was made.

2. That the Court make findings of the following:

a. How was the LAGERS pension plan determined to be separate and/or marital property.

b. What is the present monthly payment made by LAGERS to [Husband].

c. What asset, if any, was determined to be separate property and how was its value determined.

d. What percentage of the marital property is to be awarded to each party.

Only Wife and Husband testified at trial. Although the legal file contains a trial court order granting an extension of time for Wife to file proposed findings of fact and conclusions of law over Husband's objection, the legal file and the docket sheets do not contain any such filing by Wife.

In June 2004, the trial court entered a judgment dissolving the parties' marriage. In its judgment, the court found the following. Wife is employed by Neiman Marcus, earns about $1,700 per month, and has a Neiman Marcus Employee Savings Plan in the amount of $1,078.68, to which she contributes via payroll deduction. Husband is employed by Ameristar Casinos, earns about $1,600 per month, and receives $1,600 per month in retirement benefits from a Local Government Employees Retirement System (LAGERS) pension.² Regarding the LAGERS pension, the court found: (1) it consists of both marital and non-marital portions; however, the record was void of evidence from which the court could determine the marital and non-marital portions with specificity and accuracy; (2) it is a vested, non-qualified plan, and it is not subject to a Qualified Domestic Relations Order; and (3) the parties knowingly and voluntarily made an election that determines present and future distributions, including that Wife is entitled to $700 per month upon Husband's death, and the parties are not entitled to change their election at any time subsequent thereto.

Husband began an affair in December 2001. However, for three years prior to the affair, the parties' marital relationship was distant and void of comfort and companionship, although the parties resided together. Husband spent $8,000 of marital property on the affair. The trial court found that Husband's affair did not contribute to the breakdown of the marriage to the extent that a greater portion of the marital property should be awarded to Wife other than the equitable portion awarded to Wife in the judgment.

During the marriage, Husband received a lawsuit settlement that was used to satisfy marital debt. Husband also inherited $50,000, which he maintained in a separate bank account. In August 2002, Husband gave Wife $46,000 for the following purposes: to purchase a home, in consideration of Wife's financial...