McAllister v. McAllister

• Citation: 101 S.W.3d 287
• Decision Date: 28 January 2003
• Docket Number: No. ED 80010.,ED 80010.
• Parties: Hayes M.C. McALLISTER, Plaintiff-Appellant, v. Irma Lee McALLISTER, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 287

101 S.W.3d 287

Hayes M.C. McALLISTER, Plaintiff-Appellant, v. Irma Lee McALLISTER, Respondent.

No. ED 80010.

Missouri Court of Appeals, Eastern District, Division Five.

January 28, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 27, 2003.

COPYRIGHT MATERIAL OMITTED

Byron Cohen, Clayton, MO, for appellant.

Adrienne L. Schaffer-James, Clayton, MO, for respondent.

LAWRENCE E. MOONEY, Chief Judge.

Hayes McAllister, Husband, appeals the trial court's judgment dissolving his marriage to Irma Lee McAllister, Wife. Husband argues that the trial court erred in: (1) ending the trial at 5:00 p.m. after only one day of trial, and not affording him the opportunity to complete the cross-examination of Wife and to present rebuttal evidence; and (2) ordering the marital residence sold and the net proceeds divided equally, without providing him a credit for his premarital contribution. We affirm.

BACKGROUND

Husband and Wife were married on July 30, 1997, and lived together until they separated on May 2, 2000. Husband filed a petition for dissolution, and Wife cross-petitioned, asking for maintenance and payment of her attorney's fees.

During the marriage, Husband and Wife lived together at a home on Partridge Run Drive. There is conflicting testimony as to when this house was purchased. Husband testified that the house was purchased before his marriage to Wife, but he also testified the purchase date was July 16, 1999, which is after their marriage. Wife testified that the house was purchased during the marriage, that they began to look for a house right after they were married, and that it took about 18 months to find the house. There is nothing in the record before this court, such as the deed, to clarify this conflicting testimony.

Husband testified that he made a down payment of between $23,000 and $25,000 on the purchase of the Partridge Run home. According to both Husband and Wife, this money came from the sale of a building on Grand Avenue that Husband had been awarded in his prior divorce. Wife helped to repair and clean the Grand property before it was sold, but made no monetary contribution towards the purchase of the Partridge Run home. The Partridge Run residence was deeded in Husband's name alone, and he was the only one indebted on the mortgage. Both parties acknowledge that Wife's name was not placed on the deed or the mortgage because of her poor credit history.

As set out in the settlement conference order, trial began the morning of March 14, 2001. This same order stated that the estimated length of trial was one day. Trial began, at 9:32 a.m., with the presentation of Husband's evidence. Husband took the stand to testify, and underwent extensive examination, including direct, cross, re-direct, re-cross, and further re-direct examination. After Husband rested, Wife then proceeded with the presentation of her evidence, first presenting the testimony of two witnesses, then recalling Husband, and finally taking the stand herself to testify.

During the cross-examination of Wife by Husband's counsel, at approximately 4:55 p.m., the court announced that five minutes were remaining. Counsel continued with his cross-examination. During this cross-examination, the court stated "[a]nd I'm going to have to interrupt at this point, although you haven't answered the question, because we are out of time. This case was set for one day. That's what you requested, and we have had one day of trial." The judge then ruled from the bench, granting the dissolution, and read his decision into the record. As part of this decision the Partridge Run residence was ordered sold, with the proceeds divided equally between Husband and Wife. At the conclusion of the court's ruling, the court inquired whether either side had any questions. Husband's counsel asked a question concerning Husband's obligation to continue paying the mortgage on the Partridge Run property. After the court's response, Husband's counsel stated he would "like to make a statement for the record," to which the court responded "[w]e are out of time, I'm sorry.... It would have had to be done prior to 5:00, but thank you very much for offering anyway."

The court entered its decree and judgment of dissolution of marriage on April 22, 2001. Husband now appeals.

DISCUSSION

Our review of a judgment of dissolution is the same as for any court-tried action. Shelton v. Shelton, 29 S.W.3d 400, 402 (Mo.App. E.D.2000). We must affirm the judgment unless there is no substantial evidence to support the decision, 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); Mehra v. Mehra, 819 S.W.2d 351, 352 (Mo. banc 1991); Craig-Garner v. Garner, 77 S.W.3d 34, 36 (Mo.App. E.D. 2002).

Under this standard, considerable deference is given to the evidentiary and factual evaluations of the trial court. Friedman v. Friedman, 965 S.W.2d 319, 322 (Mo.App. E.D.1998). We are bound by the trial court's factual findings if supported by substantial evidence. Gibson v. Adams, 946 S.W.2d 796, 800 (Mo.App. E.D.1997). And, any fact issue upon which no specific finding is made shall be considered as having been found in accordance with the result reached. Rule 73.01; Russ v. Russ, 39 S.W.3d 895, 898 (Mo.App. E.D. 2001). We accept as true the evidence and reasonable inferences therefrom favorable to the trial court's decision and disregard all contrary evidence and inferences. Kell v. Kell, 53 S.W.3d 203, 205 (Mo.App. E.D. 2001); Mehra, 819 S.W.2d at 352; Ware v. Ware, 647 S.W.2d 582, 584 (Mo.App. E.D. 1983). We defer to the trial court where there is conflicting evidence, and will affirm the judgment even if there is evidence which would support a different conclusion. Ware, 647 S.W.2d at 584; Kell, 53 S.W.3d at 205.

We also defer to the trial court's determinations as to the credibility of the witnesses. Shelton, 29 S.W.3d at 402. The trial court is in a better position than us to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles which are not revealed in a trial transcript. Hileman v. Hileman, 909 S.W.2d 675, 679 (Mo.App. E.D.1995). The trial court is free to accept or reject all, part, or none of the testimony of a witness. McGowan v. McGowan, 43 S.W.3d 857, 861 (Mo.App. E.D.2001); See also Ware, 647 S.W.2d at 584. And, it may disbelieve testimony even when it is uncontradicted. Russ, 39 S.W.3d at 898. "The trial judge has absolute discretion as to the credibility of witnesses and the weight of their testimony is a matter for the trial court, and its findings on witness credibility are never reviewable by the appellate court." Milligan v. Helmstetter, 15 S.W.3d 15, 24 (Mo.App. W.D.2000).

Finally, the trial court's decision in a court-tried case is presumed correct, and the appellant has the burden of showing error. King v. King, 976 S.W.2d 49, 52 (Mo.App. W.D.1998); Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App. W.D. 1999). We will not reverse the trial court's judgment if there is no showing of prejudice as a result of that judgment. Shields v. Shields, 59 S.W.3d 658, 660 (Mo.App. S.D.2001) citing to Boone v. Boone, 637 S.W.2d 249, 251 (Mo.App. E.D.1982); See also Rule 84.13(b).

In his first point relied on, Husband alleges that "the trial court abused its discretion by ending the trial at 5:00 p.m. after only one day of trial and not affording husband the opportunity to complete the cross-examination of wife and to present rebuttal evidence."

We note at the outset that Husband's point relied on does not comply with Rule 84.04, setting forth the briefing requirements on appeal. Rule 84.04(d) requires that a point relied on shall (1) identify the challenged ruling, (2) concisely state the legal reasons for the claim of error, and (3) explain in summary fashion why the reasons support the claim of error. Mello v. Williams, 73 S.W.3d 681, 685 (Mo.App.E.D.2002). An insufficient point relied on preserves nothing for our review. Id. at 686; D'Agostino v. D'Agostino, 54 S.W.3d 191, 196-7 (Mo.App. W.D. 2001). Although Husband did identify the trial court's action that he is challenging on appeal, he did not state the legal reasons for his claim and in turn, did not explain why his legal reasons support his claim of reversible error. As such, his claim is not preserved for our review. However, despite Husband's failure to comply with Rule 84.04, we elect to decide this case on the merits, in light of the allegation regarding the court's conduct. See Thummel v. King, 570 S.W.2d 679, 690 (Mo.banc 1978); Zumwalt v. Koreckij, 24 S.W.3d 166, 171 (Mo.App. E.D.2000). We therefore will review Husband's allegation of error ex gratia.

We strongly disapprove of the trial court's abrupt termination of the trial. However, Husband has failed in his burden of showing prejudice, as he did not make a timely offer of proof, his claims lack specificity as to what evidence he would have presented if given additional time, and he has not provided us with an adequate record on appeal.

Husband complains that the trial court's actions precluded him from completing his cross-examination of Wife and from presenting rebuttal evidence. "[A] litigant who complains about the exclusion of evidence should invariably make an offer of proof, both to inform the trial court about the content of the proffered evidence and to allow an appellate court to assess the prejudicial effect of the exclusion." B.J.D. v. L.A.D., 23 S.W.3d 793, 797 (Mo App. E.D.2000). Here, there was no offer of proof. We realize that the judge made it abundantly clear that he did not intend to sit beyond five o'clock. Yet, upon concluding his ruling, the judge did ask both counsel if there were any questions. Husband's counsel proceeded first with a question regarding Husband's responsibility for mortgage payments. After receiving clarification about this, counsel then stated he wished...