McCallum v. McCallum, ED 85653.

• Decision Date: 21 February 2006
• Docket Number: No. ED 85653.,ED 85653.
• Citation: 184 S.W.3d 169
• Parties: Teri McCALLUM, Respondent. v. Craig D. McCALLUM, Appellant.
• Court: Missouri Court of Appeals

184 S.W.3d 169

Teri McCALLUM, Respondent. v. Craig D. McCALLUM, Appellant.

No. ED 85653.

Missouri Court of Appeals, Eastern District, Division Two.

February 21, 2006.

Michael A. Gross, Clayton, MO, for Appellant.

Charles P. Todt, Tonya D. Fifer, Lisa M. Fuller, The Todt Law Firm, P.C., Clayton, MO, for Respondent.

GARY M. GAERTNER, SR., Presiding Judge.

Appellant, Craig D. McCallum ("Husband"), appeals the second amended dissolution judgment ("the second amended judgment") of the Circuit Court of St. Louis County. On November 12, 2002, after a bench trial, the trial court entered an amended judgment ("the first amended judgment") dissolving the marriage of Husband and Respondent, Teri McCallum ("Wife"). Subsequently, we reversed in part and affirmed in part the first amended judgment and remanded the case for further proceedings. Upon remand, the trial court ordered Husband to pay Wife $195,407 as reimbursement for money due under the first amended judgment, found that the original maintenance award did not need to be modified, and increased Husband's child support obligation. We affirm.

Husband and Wife were married in 1985. Two children were born of the marriage: a son born in 1987 and a daughter born in 1990 (collectively "the two minor children"). In November of 2000, Wife filed a petition for dissolution of marriage.

A bench trial was held in October of 2001. On November 12, 2002, the trial court entered the first amended judgment dividing the marital property of Husband and Wife. The trial court awarded Husband $769,689 or 50.3% of the marital property and $760,378 or 49.7% of the marital property to Wife. The trial court specified that Wife was to receive $142,377 from the parties' Bank of America brokerage and money manager accounts (collectively "the Bank of America accounts"), and $53,030 from the parties' American Express financial services account ("the American Express account").

The trial court awarded joint legal custody of the two minor children to both parents and primary physical custody to Wife. Husband was imputed income of $280,000 per year, and Wife was imputed income of $24,000 per year. Wife was awarded maintenance in the amount of $5,500 per month. Husband was also ordered to pay child support to Wife for the two minor children in the amount of $1,673 per month.

On January 8, 2003, Wife filed a motion to modify the first amended judgment praying, inter alia, that the trial court recalculate Husband's child support obligation as the result of purported substantial and continuing changes. On September 15, 2003, Husband filed an amended motion to modify the first amended judgment praying, inter alia, that the trial court substantially decrease his maintenance obligation to Wife and reduce or abate his child support obligation.

In an opinion dated November 25, 2003 ("McCallum I"), we reversed in part the first amended judgment of the trial court because the date of valuation of the marital assets divided was not reasonably proximate to the date of distribution of the assets. See McCallum v. McCallum, 128 S.W.3d 62, 67 (Mo.App. E.D.2003). In McCallum I, we indicated that the trial court heard evidence concerning valuation of marital property during the October 2001 bench trial and then valued the marital property in July of 2002, but the property division did not become effective until the November 12, 2002 first amended judgment was entered. Id. We also reversed the trial court's award to Wife of $5,550 per month in maintenance so that the trial court, upon remand, had a full range of options. Id.

In July of 2004, pursuant to our remand of the case, the trial court held a hearing. At the same time, evidence was received on Husband and Wife's motions to modify. In the second amended judgment, entered on November 23, 2004, the trial court ordered Husband to pay Wife $195,407 as reimbursement for money due under the first amended judgment. The trial court denied both Husband and Wife's motions to modify maintenance by finding that the award to Wife of $5,550 per month in maintenance was still appropriate. However, the trial court granted Wife's motion to modify child support by increasing Husband's child support obligation to $2,435 per month for the two minor children. This appeal by Husband followed.

In reviewing this bench-tried case, we must affirm the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. McCallum, 128 S.W.3d at 65. We view the evidence and the reasonable inferences therefrom in the light most favorable to the prevailing party. Id. We recognize the superior position of the trial court to judge the credibility and sincerity of witnesses. Krost v. Krost, 133 S.W.3d 117, 119 (Mo. App. E.D.2004). The trial court may accept all, part, or none of the testimony of a witness. Id.

In his first point on appeal, Husband claims the trial court erred in ordering him to pay Wife $195,407 as part of its distribution of marital assets.

If a spouse secretes or squanders marital property in anticipation of a divorce, the court has the authority to order reimbursement. Loomis v. Loomis, 158 S.W.3d 787, 791 (Mo.App. E.D.2005).

In the second amended judgment, Husband was ordered to pay Wife $142,377 to reimburse her for her interest in the Bank of America accounts and $53,030 for her interest in the American Express account for a total of $195,407. This was the same amount Wife was awarded, but never received, under the two accounts in the first amended judgment. The trial court found that Husband transferred or squandered the funds from the accounts "in anticipation of a final judgment awarding these funds to Wife."

As indicated in the facts section above, in McCallum I we remanded this case to the trial court because the date of valuation of the marital assets divided was not reasonably proximate to the date of distribution of the assets. McCallum, 128 S.W.3d at 67. We stated that to distribute property without regard to market fluctuations would be illogical. Id. at 66.

At the hearing on remand, it was established that the values of the Bank of America accounts and the American Express account were substantially lower in November of 2002 than they were at the time of the October 2001 bench trial when evidence as to the valuation of marital assets was received by the trial court. Thus, Husband claims that the award of $195,407 was not properly premised on the value of the marital property at the time of distribution of the property in November of 2002. However, Husband provided no evidence during the hearing on remand that the substantial reduction of the account balances was due to market forces.

Recent evidence indicates that,...