In Re The Marriage Of Kim E. Gardner, ED 94126

• Decision Date: 14 September 2010
• Docket Number: No. ED 94126,ED 94164.,ED 94126
• Citation: 320 S.W.3d 230
• Parties: In re the MARRIAGE OF Kim E. GARDNER and Claire GardnerKim E. Gardner, Petitioner/Appellant,v.Claire Gardner, Respondent/Respondent.
• Court: Missouri Court of Appeals

320 S.W.3d 230

In re the MARRIAGE OF Kim E. GARDNER and Claire GardnerKim E. Gardner, Petitioner/Appellant,v.Claire Gardner, Respondent/Respondent.

Nos. ED 94126, ED 94164.

Missouri Court of Appeals,

Eastern District,

Division Two.

Sept. 14, 2010.

COPYRIGHT MATERIAL OMITTED

Susan K. Roach, Chris D. Elster, W. Edwin Roussin, The Roach Law Firm, Clayton, MO, for appellant.

Susan M. Hais, J. Robert Dennis, Hais, Hais, Goldberger & Coyne, P.C., Clayton, MO, for respondent.

KATHIANNE KNAUP CRANE, Judge.

Husband appeals from that part of the trial court's judgment pendente lite awarding wife attorney's fees and litigation costs on account in a dissolution case. We affirm.

Husband, Kim E. Gardner, and wife, Claire Gardner, were married on May 18, 1991. The parties separated on October 15, 2007. On April 6, 2009, husband filed a Petition for Dissolution of Marriage, and on June 16, 2009, wife filed a cross-petition and a motion entitled “Motion and Affidavit for Maintenance, Child Support, Child Custody, Attorney's Fees, Restraining Order, Suit Money, and Other Orders Pendente Lite ” (PDL motion). In her PDL motion, wife alleged, with respect to attorney's fees and litigation costs, that she was without adequate assets to support herself during the pendency of the lawsuit, that husband was employed, and that he had a substantial income that enabled him to pay on account the attorney's fees, litigation costs, and other expenses of the dissolution proceeding. Wife requested an order requiring husband to pay wife's attorney's fees and litigation costs on account.

On November 24, 2009, the court held a lengthy evidentiary hearing on wife's PDL motion. Wife testified on her behalf and called husband to testify. As relevant to this appeal, wife adduced evidence on the parties' incomes, husband's assets, and husband's sale of real estate and the proceeds therefrom. We summarize this evidence as follows.

Income: At the time of separation, husband owned a consulting company and earned an average of $14,999 per month as a consultant for Ameren UE. In June 2009 husband gave up consulting and became an employee. As a result, his monthly income was reduced to $8,500 per month. Wife earned $300 per week.

Assets: Husband had an interest in eight limited liability companies (LLCs), which he valued at $2,795,625 in his April 9, 2009 Statement of Property; real estate; and personal property. Husband and his LLCs had an interest in ten bank accounts. Husband also had a Merrill Lynch 401(k) account with a value of $169,492, which funds were acquired during the marriage, and three IRAs. On October 13, 2009, husband filed a second Statement of Property. It showed that three of his LLCs had no present value, although on his April 9, 2009 Statement of Property he had assigned the same three LLCs a combined present value of over $57,000.

Real Estate Sale and Proceeds: In November and December of 2008, husband sold some of the real estate. Husband received $456,000 net from the sale of one property and $400,000 from the sale of another property, and deposited these amounts. Husband's October 13, 2009 Statement of Property showed no cash on hand. Husband admitted that he spent $400,000 in a six-month time period from one bank account and spent another $400,000 from other bank accounts. However, at the PDL hearing, husband could not document where the money went. Husband testified he was paying bills and paying down debt, but did not have those checks or information about the amounts.

At the hearing, wife testified that she was requesting money to pay her attorney's fees, to hire someone to appraise the real estate, and to hire a certified public accountant (CPA) to value the assets owned by the LLCs and to trace the funds in the bank accounts. Wife's attorney explained that a CPA was needed because husband had received and disposed of $800,000 in a very short period of time and husband could not account for where the money had gone. Wife's attorney also explained that she needed an appraisal of the properties.

Several times during the hearing, the court expressed frustration with husband's failure to have accounted for his spending, or to have computed any debt on the real estate sold, and it suggested that husband provide this information at the hearing. The court advised the parties:

[T]his case is big enough that I think it needs an expert. Unfortunately, experts are very expensive. I don't know-I guess a forensic guy will give you some help in tracing it, but that's going to be huge.

During the hearing, the court estimated that the expert witness fees to track the money would be $40,000 to $60,000, and the court later indicated that it was going to order husband pay $20,000 to wife for her share of the expert witness fees. The court also estimated that another $40,000 would be required for the two parties' attorney's fees and indicated it would order husband to pay wife $20,000 for her fees. Neither party commented on the trial court's fee estimates.

At the conclusion of the hearing, the trial court entered an order reciting that the PDL had been heard and submitted, and it gave the parties a week to provide the court with a plan for obtaining $40,000 as and for attorney's fees and expert witness fees. On December 2, 2009, the trial court entered an order and judgment ordering husband to pay $40,000 for wife's attorney's fees and expert witness costs PDL on or before December 9, 2009. Husband filed a motion for relief from the court's order and to reopen the record for additional evidence, which the trial court denied. Husband did not pay the sum by December 9, 2009, and as a result, on December 14, 2009, the trial court entered an order and judgment ordering husband to liquidate a sufficient portion of the Merrill Lynch 401(k) account as necessary to pay the $40,000. It provided that the amount shall be considered “$20,000 on account for legal fees” and that the remainder was for expert fees and costs for which wife “s hall account to this Court at the end of these proceedings.”

On January 8, 2010, the trial court entered findings of fact, conclusions of law, and a pending dissolution disposing of all of the remaining issues and incorporating its previous orders regarding expert fees and attorney's fees on account. In this judgment, the trial court made a finding of fact that wife had shown that husband had a large cash flow, but that husband had not responded to the court's “urgings” that he provide backup information to confirm his expenses in these transactions at the time of the PDL. In its conclusions of law, the court recited:

8. Among the factors to be considered in awarding attorney fees is the extent to which the other party's conduct required expenses of attorney fees or unreasonably engendered increased litigation. Gendron v. Gendron, 996 S.W.2d 668 (Mo.App. W.D.1999).

DISCUSSION

I. Premature Notices of Appeal

Before we address the merits of this appeal, we need to address husband's two premature notices of appeal and identify the judgment from which this appeal is taken. On December 10, 2009, husband filed a notice of appeal from the November 24 and December 2 orders. Thereafter, on December 14, 2009, the trial court issued a third order on attorney's fees and costs, and husband filed a notice of appeal from this order on December 16, 2009. The trial court did not enter a judgment disposing of all the issues raised in the PDL motion until January 8, 2010. Husband did not file a new notice of appeal from this judgment. Because the notices of appeals were filed before the January 8 judgment became final, they were premature. Accordingly, the trial court retained jurisdiction over the case to make its subsequent orders and enter a judgment, and we consider the appeal to be from the January 8 judgment and to have been filed after the January 8 judgment became final. Rule 81.05(b); Williams v. Williams, 41 S.W.3d 877, 878 (Mo. banc 2001); Coleman v. Coleman, 187 S.W.3d 331, 333 (Mo.App.2006); see also Reynolds v. Reynolds, 109 S.W.3d 258, 269 (Mo.App.2003).

II. Attorney's Fees and Costs on Account

For his sole point on appeal, husband contends that the trial court erred in awarding attorney's fees and expert witness costs to wife because the court did not hear evidence of the work needed to be done by the attorneys or experts and there was no evidence to establish the nature and extent of the charges to be expended.

Section 452.355.1 RSMo (2000) authorizes a trial court “from time to time after considering all relevant factors including the financial resources of both parties” to order a party in a dissolution action to pay a reasonable amount of the other party's attorney's fees and costs in defending or maintaining the action. A court may award attorney's fees and litigation costs on account in a PDL action. See, e.g., Guillen v. Guillen, 820 S.W.2d 732, 733 (Mo.App.1991); Tzinberg v. Tzinberg, 631 S.W.2d 681, 683 (Mo.App.1982).

We review PDL orders under the Murphy v. Carron¹ standard. Laubinger v. Laubinger, 5 S.W.3d 166, 171 (Mo.App.1999); Fox v. Fox, 866 S.W.2d 501, 503 (Mo.App.1993). Accordingly, we will uphold the PDL judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Fox, 866 S.W.2d at 503 (citing Murphy, 536 S.W.2d at 32). We review the award of attorney's fees in a PDL action for abuse of discretion. Baldwin v. Baldwin, 926 S.W.2d 912, 914 (Mo.App.1996); Hermelin v. Hermelin, ...