In re Marriage of Michel

• Decision Date: 13 September 2004
• Docket Number: No. 25785.,25785.
• Citation: 142 S.W.3d 912
• Parties: In re the Marriage of Rhonda L. MICHEL and Chester R. Michel. Rhonda L. Michel, Petitioner-Respondent, v. Chester R. Michel, Respondent-Appellant.
• Court: Missouri Court of Appeals

142 S.W.3d 912

In re the Marriage of Rhonda L. MICHEL and Chester R. Michel.

Rhonda L. Michel, Petitioner-Respondent, v. Chester R. Michel, Respondent-Appellant.

No. 25785.

Missouri Court of Appeals, Southern District, Division One.

September 13, 2004.

Appeal from the Circuit Court, Howell County, Tracey L. Storie, Special Judge.

Christena Silvy Coleman, West plains, for Appellant.

No Appearance for Respondent.

Before BARNEY, P.J., PREWITT, J., and GARRISON, J.

PER CURIAM.

Chester R. Michel ("Husband") appeals the amended judgment which dissolved his marriage to Rhonda L. Michel ("Wife"). Husband and Wife were married on June 20, 1987 and separated on January 16, 2000.¹ Wife filed a petition for dissolution of marriage on March 20, 2000. An "Order and Judgment on Temporary Motions" was entered on May 17, 2000, which provided for, among other things, maintenance payments from Husband to Wife in the amount of $800 per month. After hearing evidence on November 29, 2000, the trial court dissolved the parties' marriage and withheld its ruling on the division of property and debts, maintenance, and several other matters until a later date. Wife filed a motion for contempt on January 25, 2001, alleging that Husband willfully failed to comply with the trial court's temporary order. Subsequently, a hearing was held on April 4, 2001 and the trial court entered its judgment on September 28, 2001. Husband filed a "Motion for New Trial and/or Reconsideration, Motion to Set Aside, or in the Alternative a Request for Specific Findings of Fact and Conclusions of Law or an Amended Judgment." After a hearing on January 8, 2002, the trial court denied Husband's motion.

Husband's initial appeal in this case was dismissed "because (1) the judgment [did] not divide all marital debts as mandated by § 452.330.1, and (2) there [was] no showing the contempt order had been enforced or that Husband had purged himself of contempt." Michel v. Michel, 94 S.W.3d 485, 486-87 (Mo.App. S.D.2003). This court further stated that the trial court "may wish to consider additional evidence." Id. at 489. The mandate from this court was filed on February 13, 2003, and the trial court entered an amended judgment on July 3, 2003 without hearing additional evidence. This appeal followed.

STANDARD OF REVIEW

The standard for reviewing a decree of dissolution is the same for reviewing any court-tried action. Bullard v. Bullard, 929 S.W.2d 942, 944 (Mo.App. E.D. 1996). The decree must be affirmed unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).² An abuse of discretion occurs when a trial court's ruling is clearly against the logic of the circumstances and is sufficiently arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App. W.D.1999). If reasonable minds can differ about the propriety of the trial court's ruling, there was no abuse of discretion. Hatchette v. Hatchette, 57 S.W.3d 884, 888 (Mo.App. W.D.2001). In making our review, the evidence is viewed in the light most favorable to the decree. In re Marriage of Lawry, 883 S.W.2d 84, 86-87 (Mo.App. S.D.1994).

FAILURE TO CONSIDER ADDITIONAL EVIDENCE AND ADOPTION OF WIFE'S PROPOSED DECREE

One of Husband's points on appeal alleges that the amended judgment was against the weight of the evidence, because the trial court erred in failing to consider additional evidence on remand as authorized by this court. Further, he argues that he was not provided notice that the trial court was going to adopt Wife's proposed decree and her suggested valuations of the parties' property.

In its opinion dismissing Husband's prior appeal for lack of a final judgment, this court stated that "[b]ecause either party will then have the right to appeal the trial court's new judgment, the trial court may wish to consider additional evidence." Michel, 94 S.W.3d at 489 (emphasis added). On remand, the trial court chose not to consider any additional evidence and instead entered an amended judgment.

Husband "cites no authority for the premise that the trial court must take additional evidence or argument upon remand." Young v. Young, 59 S.W.3d 23, 29 (Mo.App. W.D.2001) (emphasis added). Likewise, he does not explain the absence of relevant authority. A point of error left unsupported by citation of relevant authority need not be considered. Thomas v. Lloyd, 17 S.W.3d 177, 190 (Mo.App. S.D. 2000). Therefore, we need not consider this portion of Husband's argument.

Husband additionally argues in this point that the trial court erred in "[a]dopting the amended judgment prepared and submitted by [Wife's] counsel without notice to [Husband] which contained all of the values assigned by [Wife][.]"

Husband's argument that he lacked notice seems to be an assertion that he has the right to approve the decree before the court signs it. It has specifically been held that once a case has been finally submitted to the trial court or taken under advisement, no notice is necessary to the parties prior to entry of judgment. Smith v. Smith, 683 S.W.2d 651, 652 (Mo.App. W.D.1984). This court refuses to hold otherwise in this situation. See Roberts v. Roberts, 800 S.W.2d 91, 93 (Mo.App. W.D. 1990).

Further, the trial court's adoption of a proposed decree or findings of facts and conclusions of law submitted by the opposing party is not per se erroneous. Ikonomou v. Ikonomou, 776 S.W.2d 868, 873 (Mo.App. E.D.1989); Stelling v. Stelling, 769 S.W.2d 450, 452 (Mo.App. W.D. 1989). "[T]he trial court should critically examine the parties' submissions and employ only those portions of them that accurately describe the court's judgment." Stelling, 769 S.W.2d at 452. The decree should reflect the "necessary judicial consideration and polish" expected in such a document. Kreitz v. Kreitz, 750 S.W.2d 681, 684 (Mo.App. E.D.1988).

We are unable to make a determination regarding whether the trial court's reliance on Wife's proposed decree was erroneous, because Husband has failed to include Wife's proposed decree in the record on appeal. It was Husband's duty as Appellant "to present a record that contains `all the evidence necessary for our making determinations in the issues raised.'" Gossett v. Gossett, 98 S.W.3d 899, 900 (Mo.App. W.D.2003) (quoting State ex. rel. Callahan v. Collins, 978 S.W.2d 471, 474 (Mo.App. W.D.1998)). "This includes the duty to furnish a transcript containing all the records, proceedings, and evidence relating thereto." Id. at 900-01. Due to Husband's failure to provide this court with a copy of Wife's proposed findings, we have no way of determining whether the trial court committed error in the manner argued by Husband.

Additionally, valuation of property in a dissolution decree must be supported by evidence at trial. Stuckmeyer v. Stuckmeyer, 117 S.W.3d 687, 692 (Mo.App. E.D.2003). In this matter, both sides presented expert testimony regarding the value of the two tracts of real estate at issue. As for the marital home, the witnesses valued it at between $73,000 and $98,000 and the trial court valued it at $90,000. Commercial property, located in downtown Willow Springs, was given a total value of between $54,100 and $78,500 by the expert witnesses at trial and the trial court valued it at $57,699.50. We note that the trial court is entitled to believe or disbelieve testimony concerning the valuation of marital property. Taylor v. Taylor, 25 S.W.3d 634, 645 (Mo.App. W.D.2000). Given that "[v]alue is a determination of fact by the trial court, to which we give great deference," we find that the trial court's valuation of the marital property was supported by sufficient evidence at trial. See Thill v. Thill, 26 S.W.3d 199, 203 (Mo.App. W.D. 2000).

FAILURE OF TRIAL COURT TO CLASSIFY HUSBAND'S PENSION PLAN; REQUIREMENT THAT WIFE BE NAMED AS BENEFICIARY TO HUSBAND'S PENSION PLAN; AND, REQUIREMENT THAT HUSBAND PROVIDE INSURANCE

Another of Husband's points asserts that the trial court failed to delineate whether his pension plan was marital or separate property. He further argues that even though the trial court did not set aside his pension as marital property, the trial court erroneously required that he name Wife as a survivor beneficiary under the plan. Additionally, he alleges the trial court erred in requiring him to provide insurance for Wife under the pension plan.³

At trial, there was evidence regarding a retirement pension plan that Husband acquired while working for the Federal Aviation Administration ("FAA"). While the record indicates that at the time of their marriage Husband was already retired from the FAA and that he did not thereafter work for that organization, we note that Wife testified that Husband made payments into "a retirement account" during the marriage. While the parties were married, they were covered by health insurance provided through the "Postman's Benefit Plan," which stemmed from Husband's employment with the FAA.⁴

In its amended judgment, the trial court found

that [Husband] has available insurance benefits and survivors benefits under a federally administered benefit plan. [Husband] is ordered to enroll [Wife] under said plan immediately and at all times hereafter to provide insurance to [Wife] under said plan or a similar plan approved by [Wife] in writing. [Husband] shall at all times provide [Wife] with an enrollment "card" or other proof of insurance and otherwise assist her in filing claims etc.

[Husband] shall also immediately enroll [Wife] as a surviving spouse or such other survivorship provision under his federal retirement plan and provide proof of same to her and shall at all times hereinafter maintain such enrollment.

The only other mention of Husband's pension plan is found in the section of the amended judgment dealing with...