McCallum v. McCallum

• Decision Date: 25 November 2003
• Docket Number: No. ED 82132.,ED 82132.
• Parties: Teri M. McCALLUM, Petitioner/Respondent, v. Craig D. McCALLUM, Respondent/Appellant.
• Court: Missouri Court of Appeals

128 S.W.3d 62

Teri M. McCALLUM, Petitioner/Respondent, v. Craig D. McCALLUM, Respondent/Appellant.

No. ED 82132.

Missouri Court of Appeals, Eastern District, Division Three.

November 25, 2003.

Application for Transfer Denied March 30, 2004.

Michael Louis Schechter, Clayton, MO, for appellant.

Charles P. Todt, Tonya Dianne Fiferb, Clayton, MO, Danie P. Card, II, St. Louis, MO, for respondent.

WILLIAM H. CRANDALL, JR., Judge.

Husband, Craig D. McCallum, appeals from the decree of dissolution of his marriage to wife, Teri M. McCallum. We affirm in part and reverse and remand in part.

The parties were married in 1985. Two children were born of the marriage: a son in 1987 and a daughter in 1990. Although the parties separated periodically throughout the marriage, their last separation occurred in December 2000.

Wife worked as a teacher in the State of Washington from 1982 through 1989. With the consent of husband, wife stayed at home with the children after 1989. At the time of trial, she was not certified to teach in either Missouri or Washington. She did have a part-time job as an educational consultant and earned about $6,000.00 per year. During the marriage, wife assumed the primary responsibility for the care of the children, volunteered at their schools, and transported the children to their various extracurricular activities.

Husband was employed in various positions with start-up companies where he received bonuses and stock options. In 1999, he became chief operating officer of a company and earned about $160,000.00 per year. He traveled a great deal with his employment. In 2000, the parties relocated to St. Louis for husband's job. In February 2001, husband took a different job and earned about $150,000.00 annually, with a possibility of a $130,000.00 bonus.

When the parties moved to St. Louis, they started construction on a home for the family. In November 2000, the parties had over $2.9 million in available funds, which consisted mainly of monies from the sale of their home in Washington and from a settlement with one of husband's previous employers. In November, wife took $700,000.00 and used part of it to purchase another home for her and the children. At the time of trial, only $250,000.00 remained of the $2.9 million.

Wife filed the petition for dissolution of marriage in November 2000. The case was tried on October 30 and 31, 2001. In December 2001, wife filed a motion to reopen the evidence based on allegations of husband's misconduct. The court appointed a guardian ad litem (GAL) and scheduled a hearing on the motion for April 1, 2002. Later, the parties, including the GAL, decided not to proceed with the motion.

On July 15, 2002, the court entered judgment, dissolving the parties' marriage. The court, inter alia, divided the marital assets; awarded joint legal custody to both parents and primary physical custody to wife; awarded wife $5,500.00 per month in maintenance; awarded wife child support of $1,673.00 per month for both children; allocated 30 percent to wife and 70 percent to husband of the cost of private secondary school; ordered each party to bear a proportion of the children's college costs; and awarded wife $10,000.00 for her attorney's fees. Further, the court found that husband dissipated about $605,000.00 in marital assets and awarded wife one-half of that amount in the division of marital property. The court also imputed income to wife of $24,000.00 per year. Husband filed a motion to amend the judgment in August 2002, requesting, among other things, that the court reconsider the value it placed on a brokerage account. On November 12, 2002, the court entered an amended judgment, but did not change the valuation on the brokerage account. Husband appeals.

Our review of this case is guided by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We must affirm the trial court's 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. Id. at 32. We do not retry the case, rather we accept as true the evidence and reasonable inferences therefrom in the light most favorable to the prevailing party and disregard contradictory evidence. Deck v. Deck, 64 S.W.3d 870, 873 (Mo.App. E.D.2002). We recognize the superior position of the court to judge factors such as credibility, sincerity, character of the witnesses, and other intangibles that are not revealed in the transcript. Id. The party challenging the dissolution decree has the burden of demonstrating error. Id.

In his first point, husband challenges the division of marital property on the basis that the division was based on stale evidence. Here, the evidence was adduced in October 2001. The parties submitted their proposed findings of fact and conclusions of law in December 2001. Yet, the trial court did not enter the dissolution decree until July 2002. It then amended the decree in November 2002 at which time the property division became effective.

Initially, we address wife's contention that husband failed to preserve this issue because he did not file a motion for new trial in which he requested the court to hear evidence as to current values. But, "[i]n cases tried without a jury ..., neither a motion for a new trial nor a motion to amend the judgment or opinion is necessary to preserve any matter for appellate review." Rule 78.07(b). Wife's argument is without merit.

Section 452.330.1(1) RSMo 2000 requires the court to consider the economic circumstances of each spouse at the time the division of property is to become effective. In Taylor v. Taylor, 736 S.W.2d 388, 391 (Mo. banc 1987), the Supreme Court of Missouri held that the proper date for valuation of marital property was at the time of trial. These two directives, however, are not incompatible:

These two concepts are not inconsistent. Valuation of property should be reasonably proximate to the date the division is to be effective. If the effective date of the distribution is not reasonably proximate to the date of valuation, the court should hold another hearing to establish a valuation as close to the effective date of the division as possible.

In re Marriage of Gustin, 861 S.W.2d 639, 644 (Mo.App.1993). The rationale behind this requirement is that distributions based on stale valuations are not based on true value, because value is not a constant. Id. at 643. Market conditions and changing economic circumstances can change the value of assets that were valued months earlier. Morgan v. Ackerman, 964 S.W.2d 865, 869 (Mo.App. E.D.1998). To distribute property without regard to market fluctuations would be illogical. Id.

Although the lack of proximity between the evidence regarding value and the date of distribution may constitute trial court error, the delay, standing alone, does not mandate reversal. "No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action." Rule 84.13(b) (emphasis added). To be "material," the error must have at least a reasonable possibility of being prejudicial to the complaining party. Even if the term "prejudice" is not expressly used, the application of Rule 84.13(b) is implied. Thus, there must be facts in the record from which potential prejudice reasonably could be inferred and each case is therefore fact specific.

Factors to consider in determining the materiality of the error are the lapse in time between the evidence regarding valuation and the property distribution as well as the type of property involved. The longer the time lapse and the greater the potential for fluctuation in the value of the property, the greater the chance for prejudicial error. For example, a nine-month gap between evidence and judgment as to the value of the marital home may have a negligible effect on the property division, whereas a nine-month gap in valuing stocks traded on the open market could be extremely unreliable. Further, where the nature of the property indicates that its value may be volatile, there is no need to allege prejudice. See, e.g., Morse v. Morse, 80 S.W.3d 898 (Mo.App. W.D.2002) (where property included 401k and pension plans, six months too long); Price v. Price, 921 S.W.2d 668 (Mo.App. W.D.1996) (where property included husband's personal savings plan funded by General Motors stock, five months too long); Gustin, 861 S.W.2d 639 (where property included over 800,000 shares of Applebee's stock, eight months too long). Yet, where the evidence does not indicate clearly that the value of the property is volatile, the party challenging the valuation must allege prejudice. See, e.g., Poole v. Poole, 977 S.W.2d 940, 944 (Mo.App. S.D.1998) (a nine-month delay not too long where the appellant did not even suggest that the value of the stocks and bonds had substantially changed during that time period); L.J.B. v. L.W.B., 921 S.W.2d 23, 27 (Mo.App. E.D.1996) (a delay of about 15 months not too long where the appellant did not specify that any of the marital property, consisting of a marital residence, furniture, bank accounts, pension plans, and five shares of common stock, had changed drastically in value). Thus, in Poole and L.J.B., there was neither any evidence that the value of the marital property was volatile nor any allegation of prejudice.

In the instant action, not only did the record indicate that the value of certain of the marital property was volatile in nature, but husband also alleged prejudice arising from the lapse in time between the valuation evidence and the distribution of the property. The court heard evidence as to the value of the marital property in October 2001, valued the marital property in the July 2002 judgment, and distributed the property in the November 2002 amended judgment, when it denied husband's request to change the value of a brokerage account. In his ...