Lollar v. Lollar

• Decision Date: 01 September 2020
• Docket Number: No. SC 97984,SC 97984
• Citation: 609 S.W.3d 41
• Parties: Christine Ann LOLLAR, Appellant, v. Richard Dwain LOLLAR, Respondent.
• Court: Missouri Supreme Court

609 S.W.3d 41

Christine Ann LOLLAR, Appellant,

v.Richard Dwain LOLLAR, Respondent.

No. SC 97984

Supreme Court of Missouri, en banc.

Opinion issued September 1, 2020

Rehearing Denied November 3, 2020

Cheryl A. Raftert of Legal Services of Eastern Missouri Inc. in St. Louis, (314) 534-4200, for Appellant.

W. Brent Powell, Judge

Christine Ann (Lawson) Lollar ("Wife") appeals from the circuit court's judgment dissolving her marriage to Richard Dwain Lollar ("Husband") and distributing the marital estate. Wife claims the circuit court erred in awarding a marital 401(k) account of uncertain value to Husband due to Husband's marital misconduct. This Court granted transfer after opinion by the court of appeals.¹ The circuit court's judgment is affirmed.

Background

Wife and Husband married in 2005. They separated December 9, 2015, after Wife reported Husband to law enforcement for sexually assaulting their daughter. Husband was arrested and charged with first-degree statutory rape, first-degree statutory sodomy, and first-degree child molestation. After his arrest, Wife petitioned for dissolution of marriage.

During the dissolution trial, Wife testified that, while Husband was detained following his arrest, she lost her job and had no source of income. She testified she used Husband's final paychecks and a tax refund to pay outstanding debts and bills. She surrendered a Ford Mustang previously driven by Husband to creditors because she could not afford payments on the loan. To reduce expenses, Wife moved to a smaller residence. The new residence could not accommodate all the possessions from the larger home, so she disposed of some personal property, including some of Husband's personal possessions.

The marital estate included a 401(k) account in Husband's name. During the trial, neither Wife nor Husband provided specific evidence as to the account's actual value. Wife said the 401(k) account was valued at "[a] couple thousand, perhaps" but "less than five" thousand dollars. Husband testified the amount in the account was "only like a couple thousand dollars." After weighing the inexact evidence, the circuit court determined the value of the account to be "less than $5,000.00."

Wife did not seek an award of child support or maintenance due to Husband's incarceration, but she sought a disproportionate value of the marital estate, including 100 percent of the 401(k). Wife justified this request because she was the sole provider for their daughter, her monthly income did not cover her reasonable needs, and Husband had committed misconduct during the marriage by assaulting their daughter. Husband, representing himself, presented no evidence but requested an even division of the 401(k). Husband explained he needed funds from the account to pay the marital debts Wife sought to assign to him because his incarceration prevented him from earning income.

After weighing the evidence, including Wife's and Husband's property statements listing the separate marital property and debts with corresponding and disputed values, the circuit court divided the marital estate. The circuit court awarded Wife a vehicle valued at $17,000² —the most substantial asset of the marital property—and all personal property in her possession. The circuit court also assigned less than half of the marital debts to Wife, including several credit cards in her name and half of the daughter's outstanding medical expenses. The marital debt the circuit court assigned to Wife totaled $11,000. On balance, the total value of Wife's allocation of marital property was $6,000. The circuit court assigned a higher percentage of the marital debts to Husband, including the other half of the daughter's outstanding medical expenses and several other credit cards. The marital debts allocated to Husband totaled $12,800. The circuit court awarded Husband the entire 401(k) account, but Husband received no other assets of significant value. The total net value of Husband's allocation of the marital property was approximately $7,800 of debt, assuming the 401(k) had a value of $4,999.99.³ In its judgment, the circuit court also found Wife dissipated marital assets by using Husband's paychecks and the tax refund to pay outstanding debts and utility bills. Despite this finding, the circuit court's apportionment of the marital estate favored Wife.

On appeal, Wife claims the circuit court legally erred and abused its discretion in awarding the entire 401(k) account to Husband in light of Husband's misconduct. Specifically, Wife argues the court erred in failing to appropriately distribute the marital estate based on its finding that she dissipated marital assets by paying debts and household bills with Husband's paychecks and the tax refund.⁴

Standard of Review

The judgment in a court-tried civil case will be sustained "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976) (setting the standard of review for court-tried civil cases). Only errors "materially affecting the merits of the action," or prejudicial errors, require reversal. Rule 84.13(b); § 512.160.2.⁵ "The trial court has broad discretion in identifying, valuing, and dividing marital property." Landewee v. Landewee , 515 S.W.3d 691, 694 (Mo. banc 2017) (internal quotation omitted). In addition, appellate courts will "interfere [in marital property divisions] only where the division is so unduly favorable to one party that it constitutes an abuse of discretion." Stone v. Stone, 450 S.W.3d 817, 820 (Mo. App. 2014). This Court presumes the property division was correct, and the appellant bears the burden of overcoming the presumption. Id.

In reviewing the circuit court's judgment, this Court accepts as true the facts and all reasonable inferences therefrom in the light most favorable to the judgment. Rule 73.01(a)(2); Landewee , 515 S.W.3d at 691. This Court disregards all evidence and inferences to the contrary. In re Marriage of Hillis , 313 S.W.3d 643, 644 (Mo. banc 2010). This Court does not review credibility determinations or resolutions of conflicting evidence. In re Marriage of Patroske, 888 S.W.2d 374, 383 (Mo. App. 1994).

Division of Marital Assets

"While the trial court's division of marital property need not be equal, it must be fair" under the facts and circumstances of the case. Silcox v. Silcox , 6 S.W.3d 899, 904 (Mo. banc 1999). "Retirement benefits are considered marital property and are subject to division, unless they were accumulated prior to the marriage." Rallo v. Rallo , 477 S.W.3d 29, 39 (Mo. App. 2015).

The parties bear the burden to present evidence of the value of marital property. Cosby v. Cosby , 291 S.W.3d 795, 799 (Mo. App. 2009). A circuit court may rely on a party's estimate of an asset's value, but the court is not required to find the value in accordance with that estimate. See In re Marriage of Kovach , 873 S.W.2d 604, 608-609 (Mo. App. 1993). If the parties do not present credible evidence of the value of marital property, the circuit court cannot be found to have distributed the property unequally. In re Marriage of Julian , 868 S.W.2d 182, 186-87 (Mo. App. 1994).

After the circuit court determines the value of the marital property, the court distributes the property between the parties by weighing the non-exclusive factors outlined in section 452.330.1. Section 452.330.1 provides the circuit court "shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors," but the court must consider certain factors.⁶ Marital misconduct is a factor listed in section 452.330.1; however, it is just one of many factors the circuit court must consider when dividing marital property. Other factors may balance or even outweigh the effect of marital misconduct and give rise to marital property division that favors one spouse.⁷

On appeal, Wife claims the circuit court abused its discretion by unduly favoring Husband in apportioning the marital property and bears the burden of showing an abuse of discretion. Silcox , 6 S.W.3d at 904-05. Wife cannot meet this burden and show the circuit court abused its discretion in distributing the marital assets and debts. This Court looks at all facts in the light most favorable to the judgment and disregards evidence to the contrary. Rule 73.01(c); Hillis , 313 S.W.3d at 644. Reviewing the circuit court's judgment under this standard of review, the circuit court's asset and debt division is not so disproportionate in Husband's favor as to constitute an abuse of discretion. In fact, the division of assets and debts disproportionately favors Wife. As described above, Wife received a vast amount of marital assets totaling $17,000. The only asset apportioned to Husband was the 401(k) account valued at less than $5,000, and he received a larger portion of the marital debts.

While Murphy v. Carron dictates this Court review the circuit court's judgment to determine if it "erroneously declares the law ... [or] erroneously applies the law," 536 S.W.2d at 32, erroneous declaration or application of the law is not itself sufficient to justify reversal. This Court will find reversible error only when it materially affects the merits of the action with a "firm belief that the decree or judgment is wrong." Id. ; see also Rule 84.13(d). In other words, a party must not only demonstrate error but also show prejudice. Murrell v. State , 215 S.W.3d 96, 109-10 (Mo. banc 2007). Because Wife received a disproportionately advantageous division of the marital estate, Wife was not prejudiced by the circuit court's finding that she dissipated marital assets, even assuming this finding was in error. See Knapp v. Knapp , 874 S.W.2d 520, 522 (Mo. App. 1994) (finding that, despite erroneous application of the law, there was no prejudice to one...