Navarro v. Navarro

• Decision Date: 22 November 2016
• Docket Number: WD 79513
• Citation: 504 S.W.3d 167
• Parties: Daniel NAVARRO, Respondent, v. Marisa NAVARRO, Appellant.
• Court: Missouri Court of Appeals

504 S.W.3d 167

Daniel NAVARRO, Respondent,

v.Marisa NAVARRO, Appellant.

WD 79513

Missouri Court of Appeals, Western District.

OPINION FILED: November 22, 2016

Daniel Navarro, Kansas City, MO, Respondent, pro se,

Dennis R. Rowland, Kansas City, MO, Attorney for Appellant.

Before Division Two: Lisa White Hardwick, Presiding Judge, and Karen King Mitchell and Anthony Rex Gabbert, Judges

Karen King Mitchell, Judge

Marisa Navarro (Wife) challenges the trial court's dissolution judgment, judgment of contempt for failing to turn over certain marital property to Daniel Navarro (Husband), and the trial court's distribution of marital property.¹ Finding no error, we affirm.

Background²

Husband and Wife were married in July 1991 and had two children during the marriage. They separated in 2012, after Husband filed a petition for dissolution of marriage. In response, Wife filed an answer and counter-petition. Both Husband and Wife requested an equitable division of the marital property.

A trial was held on the dissolution petition and counter-petition on May 1, 2013, and May 23, 2013. At the conclusion of the trial, the court made a number of oral statements concerning child custody, support, attorney fees, and the division of property. Specifically, with regard to the marital property, the court stated that it wanted "the property divided between the parties at a 50/50 split," and directed Husband's counsel to prepare a written judgment. The court entered the written judgment on June 24, 2013. Among other things, the judgment awarded the marital home to Wife on the condition that she refinance it and pay Husband half of the proceeds of refinancing in excess of the debt owed on the house. Specifically, the judgment "granted [Wife] until July 7, 2013 to refinance or vacate the residence." If Wife either failed or was unable to refinance the home, it was to be sold no later than August 23, 2013, with the proceeds to be divided equally between Husband and Wife. If the house was not refinanced or sold by August 23, 2013, the court indicated that it would "appoint a special master to oversee the sale of said real estate."

On July 16, 2013, Husband filed a motion for contempt, in which he asked the court to find Wife in contempt of the portion of the judgment concerning the disposition of the marital residence, in that Wife had not refinanced or vacated the home.

Among other things, Husband requested that Wife be compelled to vacate the residence and ordered to pay costs and attorney fees associated with the contempt motion. Wife filed a response to the contempt motion and also filed a motion for new trial. One of Wife's allegations in her new trial motion was that the written judgment failed to distribute all of the marital assets, namely, Husband's retirement plan. The court entered an amended dissolution judgment on September 3, 2013, but the only change made to the property division concerned the disposition of the marital residence, requiring that, if it is sold at a loss, the loss would be split evenly.

Wife filed a notice of appeal of the amended dissolution judgment and a second motion for new trial. In her second motion for new trial she again alleged, among other things, that the amended dissolution judgment omitted Husband's retirement plan. After hearing arguments from counsel for both parties, the circuit court denied Wife's second motion for new trial. This court subsequently dismissed Wife's appeal of the amended dissolution judgment after finding that the judgment was not final and appealable because Husband's contempt motion, his request for leave to file an amended contempt motion, and his request for attorney fees on appeal remained pending.

After Wife's first notice of appeal was dismissed, the circuit court allowed Husband to file an amended motion for contempt. In his amended motion, Husband asked the court to hold Wife in contempt of the amended dissolution judgment for refusing to refinance or to vacate the marital residence, refusing to relinquish personal property awarded to him, and refusing to pay his attorney fees as ordered in both dissolution judgments. Following a hearing, the court granted Husband's amended motion and found Wife to be in contempt of the amended dissolution judgment. Specifically, the court found that Wife had failed to refinance or vacate the marital residence by the deadline established by the judgment, that she had failed to surrender to Husband certain personal property, and that she had failed to pay $1,000 in attorney fees. As to the personal property and attorney fees, the Wife was ordered to comply with the terms of the judgment by August 8, 2014.³ A special master was appointed to sell the real estate, with his fees and all expenses related to the sale to be paid out of the sale proceeds. Wife appealed both the amended dissolution judgment and the contempt judgment. This court again dismissed the appeal as not final because the trial court had not divided Husband's retirement plan. Navarro v. Navarro , 465 S.W.3d 912, 915 (Mo. App. W.D. 2015).

On remand, the trial court entered a second amended dissolution judgment, which made no changes to the division of marital property other than dividing Husband's retirement plan equally. The second amended judgment set monetary values for the residence, vehicles, retirement plan, and debts, but did not state values for much of the personal property. Wife appeals both the second amended judgment and the contempt judgment.

Standard of Review

"We will affirm the trial court's judgment of dissolution of marriage 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." Herschend v. Herschend , 486 S.W.3d 346, 351 (Mo. App. S.D. 2015). "We view the evidence and permissible inferences therefrom in the light most favorable to the trial court's judgment and disregard all contrary evidence and inferences." Id. "The court is free to disbelieve any, all, or none of the evidence, and we may not re-evaluate the evidence through our own perspective." Id.

Analysis

In her six points, Wife claims that the trial court erred in: (1) failing to divide the marital assets equally, in accordance the trial court's oral pronouncement at trial; (2) overruling Wife's motion for new trial without hearing evidence, which would have showed that the assets were not divided equally per the trial court's oral pronouncement; (3) finding Wife in contempt of the amended judgment of dissolution because the judgment was "a nullity due to [the] failure to accurately recite the [trial] court's previous, unambiguous oral pronouncement"; (4) finding Wife in contempt, because Husband's motion for contempt was not an authorized after-trial motion; (5) finding Wife in contempt, because the amended judgment, upon which she was held in contempt, was not a final judgment; and (6) dividing the marital assets in a manner that unfairly favors Husband.

I. Whether the judgment conforms to the trial court's oral pronouncements does not affect the judgment's validity.

Because Wife's first two points both depend on her contention that the second amended judgment is "a nullity" due to its failure to strictly follow the trial court's oral pronouncements, we review those claims together.

Neither party requested written findings. While a trial court must make findings on child custody, J.D. v. L.D. , 478 S.W.3d 514, 517 (Mo. App. E.D. 2015), "[u]nless a request is made, the trial court is not required to make specific findings as to the value of items of marital property." Steele v. Steele , 423 S.W.3d 898, 908 (Mo. App. S.D. 2014) (quoting In re Marriage of Rippee , 862 S.W.2d 493, 494 (Mo. App. S.D. 1993) ). Nevertheless, the trial court did enter a lengthy judgment, in which it made gratuitous findings as to the value of much of the marital property and debts, though it did not set values for the personal property.

Wife argues that the trial court unambiguously pronounced at trial that the marital property should be divided evenly, but she claims that the judgment failed to do so. Wife argues that, due to its failure to comply with the oral pronouncement, the judgment is "a nullity."⁴ For support, wife cites Johnson v. State , 446 S.W.3d 274 (Mo. App. E.D. 2014), a post-conviction relief case addressing a criminal sentence, in which the court correctly noted that, "[w]hen a [trial] court's written sentence materially differs from the formal oral pronouncement of sentence, the formal oral pronouncement controls if it is unambiguous." Id. at 276. Wife claims that Johnson is "analogous" to the present situation.

Wife's reliance on a case addressing sentencing in a criminal context is misplaced. Here, the court entered a civil judgment. And in civil matters, "Rule 73.01(c) requires that when there are no written findings, the evidence shall be considered as having been found in accordance with the result reached; in other words, in the light most favorable to the judgment." Harvey v. Dir. of Revenue , 371 S.W.3d 824, 828 (Mo. App. W.D. 2012) (internal quotation omitted). Indeed, Wife's reliance on criminal procedure is particularly troubling because "there is no analogue to Rule 73.01(c) in Missouri's rules of criminal procedure." State v. Renfrow , 495 S.W.3d 840, 849 n.2 (Mo. App. W.D. 2016) (Ahuja, P.J., dissenting). Under Rule 73.01(c), "the general rule [is] that ‘oral comments should not be considered where findings of fact and conclusions of law have not been requested but are gratuitously provided by the trial court.’ " Scholz v. Schenk , 489 S.W.3d 306, 311 (Mo. App. W.D. 2016) (quoting Harvey , 371 S.W.3d at 827 ). "Gratuitous ‘oral pronouncements,’ " such as the one made at trial, "are not part of the trial court's order or judgment and may be considered only as an explanation of the order or judgment." Id. (quoting Harvey , 371 S.W.3d at 828 ). "Certainly, [w]here a judgment is ambiguous, uncertain, or...