In re The Marriage of Helmestetter v. Helmestetter

• Decision Date: 29 February 2000
• Citation: 15 S.W.3d 15
• Parties: (Mo.App. W.D. 2000) . In re The Marriage of Jan Milligan f/k/a Helmstetter, Appellant-Respondent v. Carl Helmstetter, Respondent WD55619 Missouri Court of Appeals Western District Handdown Date: 0
• Court: Missouri Court of Appeals

15 S.W.3d 15 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

In re The Marriage of Jan Milligan f/k/a Helmstetter, Appellant-Respondent v. Carl Helmstetter, Respondent

WD55619

Missouri Court of Appeals Western District

Handdown Date: 02/29/2000

Appeal From: Circuit Court of Jackson County, Hon. Charles Shangler

Counsel for Appellant: Nancy Beartdsley

Counsel for Respondent: Gail Berkowitz

Opinion Summary:

Wife appealed from a modification/reduction of maintenance and to the distribution of proceeds from the sales of marital properties. Husband cross-appealed as to the court's failure to require wife to repay retroactively reduced maintenance. The Court of Appeals, Lowenstein, J., held that the reduction in maintenance was proper, the sales proceeds were to be redistributed in a more equitable manner, and wife was ordered to repay the amount of retroactively reduced maintenance.

Opinion Author: Harold L. Lowenstein

Opinion Vote: AFFIRMED IN PART AND REVERSED IN PART. Spinden and Ulrich, JJ. concur

Opinion:

This appeal emanates from a post-dissolution modification of maintenance and certain other orders. Jan Milligan Helmstetter (Jan) appeals the judgment entered after Carl Helmstetter (Carl) filed a motion to modify the amount of maintenance he was paying to Jan. Intertwined in this action is the motion court's ruling on Jan's subsequent motion for Carl to show cause why he was not making house payments. Also consolidated in this case were Carl's issues that Jan had unduly delayed the sale of the parties' house and summer home. Carl has cross-appealed. The reader is advised there were four children of this marriage. There have also been numerous changes in their custody which indirectly affect the root issue here -- modification of maintenance and the ultimate disposition of sale proceeds of real estate, which followed a long period of inaction, while debts, including IRS debts, mounted.

In addition to retroactively modifying the amount of Carl's maintenance obligation to Jan, the motion court also set a prospective date for termination. It further ordered reimbursement to the parties for certain debts from the sale proceeds of two marital homes, distributed the remaining proceeds of the sale, and dismissed contempt charges brought against respondent. Appellant Jan and respondent Carl were married for almost 23 years when their marriage was dissolved after a hearing before an arbitrator which took place in October and November of 1992. The arbitrator's Findings of Facts, Conclusions of Law and Arbitration Decision were confirmed by the court in May 1993. The decree will be summarized in pertinent part.

Carl and Jan spent their married life in Kansas City, Missouri, where Carl was, and still is, a senior partner of a law firm, while Jan was a homemaker to their four children. At the time of dissolution Carl had custody of one son. Carl ultimately obtained custody of the other two sons, while the youngest daughter remained with Jan. The daughter was born with certain developmental abnormalities, making her a slow learner, though the arbitrator found that her care was not a substantial obstacle to Jan's future ability to work full time and support herself.

At the time of the dissolution, the parties owned two marital residences: one in Kansas City and one in Michigan. The Kansas City home was subject to a mortgage and deed of trust which had a balance of $80,560.00, as well as a second mortgage which was a revolving line of credit and deed of trust with a balance of $198,500.00. Both mortgage payments on the Kansas City residence equaled $4,200.00 per month. Additionally, the parties owned a vacation home in Michigan subject to a mortgage and deed of trust with a balance of $166,664.00, and monthly payments of $1,400.00. At the time the marriage was dissolved, the arbitrator found that the parties were in dire financial straits as they had been living well beyond their means long before the dissolution.

Prior to the 1992 arbitration, the parties entered into a Joint Stipulation and Agreement that was incorporated into the May 1993 order of the court. The parties had agreed that the two residences were to be promptly sold to satisfy all existing obligations the parties owed, and the proceeds of sales would be distributed according to the schedule set by the arbitrator. The remaining proceeds were to be awarded 60% to Jan and 40% to Carl. While the sales were pending, Carl agreed to and was ordered to pay all mortgage and indebtedness for both properties, recovering any principal balance reduction when the sale proceeds were eventually divided.

Additionally in the court order of May 1993 confirming the arbitrator's finding and conclusions, Carl was ordered to pay modifiable maintenance in the amount of $1,931.00 per month until the Kansas City residence sold, and at that time the amount would increase to $2,800.00 per month. (Carl had been voluntarily paying $3,000.00 per month in child support before the dissolution while the parties were separated.) However, neither residence sold until 1995: the Michigan residence selling in May of 1995, and the Kansas City residence selling in December of 1995. The majority of this appeal deals with the parties' conduct relating to the sales of the two residences. Facts included in the following recitation are taken from the judgment under review which was rendered in February, 1998.

In May 1993 when the marriage was dissolved, Carl was ordered to pay the mortgages, which he did consistently until late 1994. In June 1994, Carl filed a motion to modify to reduce maintenance based in part on his inability to provide a home and support for the three boys and because Jan would not step down as realtor for the residence or take active steps in getting the houses sold. His income had declined, his taxes went unpaid and he did not have money to pay the mortgages on the unsold homes. He stopped paying the Michigan mortgage in December of 1994 after missing two payments in late 1994. He made his last payment on the Kansas City house in December of 1994 after missing one to two payments in late 1994. Further, Carl borrowed against the revolving line of credit and did not pay back $10,845.50 of prinicpal. Although Jan objected that this was part of the mortgage pay-off to be split 60/40, Carl testified that the order did not prohibit him from continuing to draw on the line of credit.

Carl stopped making payments on the second mortgage line of credit in January of 1995. Ultimately, foreclosure proceedings were initiated on both residences in an action for collection of the line of credit. Jan hired counsel and was successful in stopping the foreclosure proceedings until the Kansas City residence sold. However, in order to do this, the parties were required to pay the first and second lien holders the entire balance of the net proceeds of the Michigan residence when it sold. Under the initial court order, had those proceeds not been used to avoid foreclosure on the Kansas City residence, they would have been split 60/40 between the two parties.

When the Kansas City residence finally sold, the balances of the first and second mortgages due to the lien holder were $80,814.49 and $210,937.02 respectively, which were both paid in full from the sale proceeds. Both of the balances included principal, interest, late charges, and the lenders' attorney fees resulting from the foreclosure proceedings. The remaining balance of the sale proceeds was placed in escrow pending a trial court decision.

Jan filed a motion asking for a lien against Carl's share of the proceeds for the amount in which she was damaged by Carl's refusal to pay the mortgages. The motion was denied by the trial court as the original order had adopted the parties' Stipulation and Agreement which stated that all late fees, attorney fees and foreclosure costs associated with the two properties were to be paid from the sale proceeds.

The financial positions of the two parties are relevant to the trial court's order and the issues on appeal. Carl testified that he was not able to meet the court ordered obligations due to his financial status at the time he quit paying the mortgages. His failure to pay was attributed to his decreased income, his costs in caring for the three children in his custody, his maintenance and child support payments to Jan, and most importantly, the unexpected duration of time in which the two residences were on the market. As noted in the introductory paragraph, Carl's payments of income tax fell delinquent, resulting in substantial tax obligations for 1992 and 1993.

It was anticipated that both homes would be sold in a short time. Jan continued to live in the house and use the summer home herself and to rent it out on a limited basis. She did not account for expenses, upkeep, or the rental income from the Michigan house. Even though her maintenance would increase when the properties sold, she, as an owner and agent, allowed the houses to stay on the market for approximately three and a half years, while Carl continued to make payments until financial resources forced him to quit making them in December 1994. The court found the unpaid tax problems of 1992 and 1993 were attributable to Jan's failure to effectuate the eventual sales of the properties.

After the dissolution, the parties agreed to file joint 1992 tax returns with Carl taking full responsibility for the tax liability in order for him to benefit from filing with a married status. However, after Carl paid the full amount, he later received reimbursement for the amount of the 1992 tax obligation from the trial court through the sale proceeds. Subsequently, Carl did not pay any of his individual taxes for the years after 1992 and, as a result, by the time of the October 1998 modification hearing he owed $180,387.04. A large part of this tax liability...