L.R.S. v. C.A.S.

Decision Date15 August 2017
Docket NumberNo. ED 104416,ED 104416
Citation525 S.W.3d 172
Parties L.R.S., Respondent, v. C.A.S., Appellant.
CourtMissouri Court of Appeals

Brian E. McGovern, Laura H. Stobie, for appellant.

Chris R. Wegner, Kimberly Ulrich Buchanan, for respondent.

ROBERT M. CLAYTON III, Presiding Judge

C.A.S. ("Husband") appeals from the trial court's Findings of Fact, Conclusions of Law, Order, Judgment and Decree of Dissolution ("Judgment") and subsequent judgment nunc pro tunc. Husband claims the trial court erred in issues related to the division of marital property, maintenance, and an award of attorney's fees on appeal. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.1

I. BACKGROUND
A. The Evidence Adduced at Trial

L.R.S. ("Wife") filed her petition for dissolution of marriage on September 16, 2014, and Husband filed a cross-petition for dissolution on October 7, 2014. A bench trial was conducted on October 5, October 6, October 30, and November 16, 2015, revealing the following facts.

Husband and Wife were married on October 9, 1992.2 It is undisputed the parties enjoyed substantial financial resources throughout the marriage, and that they grew accustomed to a certain standard of living. Therefore, much of the evidence adduced at trial related to Husband's multiple sources of income and to the parties' spending patterns, which we summarize below.

Throughout the marriage, Husband was involved in the following business ventures that provided him with sources of income. First, Husband owned a fifty percent interest in W.C. Motor Company d/b/a West County Volvo ("West County Volvo"). Husband was also employed as the President of West County Volvo, and from this employment he earned a salary of $140,926.12 in 2014, along with many benefits. Second, Husband owned a twenty-four and one-half percent interest in Suntrup Ford, Inc. d/b/a Suntrup Ford Westport ("Suntrup Ford Westport") and was paid distributions based on his ownership interest, such distributions totaled $96,016.08 in the five years before trial. Third, Husband is the sole owner of Duke Reinsurance, LTD, which sells aftermarket financial products (warranties) to customers of West County Volvo. Between 2009 and 2014, Husband received a total of $598,233.40 from Duke Reinsurance, LTD. Fourth, Husband and Wife wholly owned two limited liability companies, 7196 LLC and 14400 Manchester, LLC ("the real estate entities"), which owned property that was leased to West County Volvo. 7196 LLC generated approximately $3,450 per month in income and 14400 Manchester, LLC generated approximately $3,000 per month. Finally, the trial court also found Husband received income from Heart Dealer Financial Services, LLC ("Heart Dealer Financial"), a third-party administrator of financial products for West County Volvo. In the five years prior to trial, Husband received a total of $169,269.64 from Heart Dealer Financial.

Calculations associated with the parties' joint tax returns indicate their gross income was $452,557 in 2014. Husband also received $113,204 from Duke Reinsurance, LTD in 2014 that was not included on Husband's tax return. When totaled together, then divided by twelve, the court found that Husband's gross income was $47,146.75 per month.

Early in the marriage, Wife was employed as a model, make-up artist, and in a sales position. However, Wife stopped working when the parties had children, and has not worked outside the residence since 1998. Wife received help caring for the parties' children and maintaining the marital residence; the couple employed an au pair when the children were young and then employed a cleaning lady and a part-time worker to do the family's laundry. Based on the report of a vocational expert, the trial court imputed income to Wife in the amount of $2,167 per month as her potential employment income.

Significant testimony was elicited regarding alleged marital and financial misconduct. During the marriage and prior to the parties' separation, Husband suffered from alcohol addiction

, cocaine addiction, and engaged in sexual relationships with massage therapists. The foregoing misconduct all occurred while the minor children were still residing in the home, and Wife testified that Husband's actions affected the children. In 2013, Husband went to Sober Living by the Sea, a rehabilitation facility for approximately thirty days. Husband has remained sober since he left the rehabilitation facility. Additionally, the trial court found Husband violated St. Louis County Local Court Rule 68 (effective May 1, 2010) ("Local Rule 68")3 by spending a substantial amount of marital funds on his girlfriend, or elsewhere which he cannot account for, while the dissolution proceedings were pending.

Wife admitted to using cocaine with Husband because she felt it "was about the only way I could get to do anything with him." Wife also admitted that after Husband cancelled her credit card in December 2014, she removed approximately $11,000 from the marital bank account, transferred the money to her separate bank account, and spent it. However, the trial court found Wife's alleged financial misconduct was "dwarfed" by that of Husband.

B. The Trial Court's Judgment and Other Relevant Procedural Posture

On February 18, 2016, the trial court issued its Judgment, and on March 10, 2016 the court issued a judgment nunc pro tunc, correcting mathematical or clerical errors.4 In its Judgment, inter alia , the trial court ordered the following regarding the division of property and maintenance.

The trial court made findings as to the value of each of Husband's business interests, and found the total value of the marital estate to be $1,589,735.51. Based in part on Husband's misconduct and on the fact Husband was the party with greater earning capacity, the trial court determined a property division of sixty percent to Wife and forty percent to Husband was just, equitable, and appropriate. Husband was awarded: the entirety of his various business interests, valued at $1,133,500 total; the marital Morgan Stanley account with a balance of $34; and $12,325 of the equity from the sale of the marital residence. Wife was awarded the West County Volvo 401(K) plan valued at $66,302.51 and equity from the sale of the marital residence in the amount of $93,939.5 Husband was then ordered to pay Wife a first equalization payment of $658,601 to reach the sixty-forty property division. Husband was also ordered to pay Wife a second equalization payment of $70,815 "to equalize assets in light of each party's use of marital funds in violation of Local Court Rule 68."6

The trial court also awarded Husband as his separate property, a BMW 401(K) plan in the amount of approximately $2,000 and his interest in a family trust, which holds assets comprised of real estate and cash, in the approximate value of $5,500,000. As to the marital debt, Husband was ordered to pay ninety percent of the parties' tax debt, while Wife was ordered to pay the remaining ten percent. Husband was also ordered to bear responsibility for repaying a promissory note Husband owes to his brother.

The proceeds from the sale of the marital residence were first used to pay $100,000 to each party's attorney's fees. Then, the court split the remaining home equity according to the sixty-forty property division, deducted all litigation expenses from Husband's side and Wife's additional attorney's fees and advances from her side, and distributed the remainder to Husband and Wife in the amounts previously stated.

Husband was ordered to pay Wife $14,617 per month in modifiable maintenance beginning on December 1, 2015. In support of its award of maintenance, the trial court listed with particularity each of the parties' income and reasonable expenses.7 In lieu of retroactive maintenance, Husband was ordered to pay Wife's outstanding credit card debt in an amount not to exceed $57,556.12. Additionally, Husband was ordered to pay for the children's schooling, and to pay Wife $500 in child support for each month the youngest child is home from college.

On March 18, 2016, Husband filed a motion to amend the Judgment, or alternatively, for a new trial, which was subsequently denied by the trial court. Husband then filed his notice of appeal on May 20, 2016.

On September 22, 2016, Wife filed a motion requesting attorney's fees on appeal. Husband filed written objections to the motion for attorney's fees on October 10, 2016, and the trial court held a hearing off the record the next day. The trial court subsequently granted Wife's motion and ordered Husband to pay $25,000 of Wife's attorney's fees on appeal. Husband appeals.

II. DISCUSSION

Husband raises eight points on appeal, which we will discuss in the following order. In his eighth point on appeal, Husband argues the trial court erred in ordering him to pay Wife an equalization payment of $80,100 as part of the division of marital property. Then, in Husband's first through sixth points on appeal, he asserts the trial court erred in ordering Husband to pay Wife $14,617 in monthly maintenance. And in his seventh point on appeal, Husband contends the trial court erred in ordering him to pay Wife $25,000 for attorney's fees on appeal.

A. General Standard of Review

As with any court-tried case, our review of a dissolution of marriage action is guided by the standards set forth in Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976). Alabach v. Alabach , 478 S.W.3d 511, 513 (Mo. App. E.D. 2015) (" Alabach I "). Accordingly, the dissolution judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id.

Matters such as the weight of evidence, the credibility of witnesses, and the resolution of conflicting evidence are for the trial court to resolve and will not be reviewed by this Court. Hollida v. Hollida , 131 S.W.3d 911,...

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