Neal v. Neal

• Decision Date: 17 March 2009
• Docket Number: No. ED 90390.,ED 90390.
• Parties: Troy R. NEAL, Respondent, v. Alberta D. NEAL, Appellant.
• Court: Missouri Court of Appeals

281 S.W.3d 330

Troy R. NEAL, Respondent, v. Alberta D. NEAL, Appellant.

No. ED 90390.

Missouri Court of Appeals, Eastern District, Division One.

March 17, 2009.

Michael P. Cohan, The Cohan Law Firm, LLC, St. Louis, MO, for Appellant.

Deborah Benoit, Kruger & Benoit, L.L.C., St. Louis, MO, for Respondent.

KURT S. ODENWALD, Presiding Judge.

Introduction

Alberta D. Neal (Wife) appeals from the trial court's Amended Judgment of Dissolution of Marriage (Amended Judgment), inter alia, awarding Troy R. Neal (Husband) and Wife with joint legal custody of the parties' minor child, ordering Husband to pay monthly child support, and dividing the parties' property and debts. We affirm in part and reverse in part, remanding this case to the trial court with instructions.

Background

Husband and Wife were married on May 6, 1995. One child, C.N. (Daughter) was born of the marriage on July 22, 1995. The parties separated in September 2004. Husband filed his Petition for Dissolution (Petition) on May 15, 2006. Thereafter, Wife filed her Answer to Petition for Dissolution for Marriage and Counter-Petition for Dissolution of Marriage (Answer and Counter-Petition) on June 13, 2006. The trial court conducted a hearing on May 7, 2007, concerning the Petition, at which the following evidence pertinent to the issues on appeal was adduced.

At the time of the hearing, Daughter was 11 years old. Since Husband and Wife separated, they alternated physical custody of Daughter on a weekly basis. The parties agreed to continue that basic schedule, as well as joint legal custody. Husband proposed that the exchange take place at 6:30 a.m. on Mondays, which would allow for Daughter to spend an entire Monday holiday with the parent in custody. He also testified that a Sunday evening exchange interrupted their Sunday evening church services. Wife testified that she preferred a Sunday evening exchange because "the evening works better for dropping [Daughter] off and picking her up" and because there were problems in the past with Monday exchanges.

Wife has another child, R.N., not of the marriage. The child lives with Wife, but Wife receives no child support for him and Wife pays all of R.N.'s expenses.

Husband is employed at Boeing as an engineer. Husband testified that his income for the year prior to trial was set forth on his Exhibit 8, his 2006 W-2, totaling $88,016.07. Exhibit 8 lists varying amounts for Husband's income, including Medicare wages of $97,633.55, Social Security wages of $94,200, and wages, tips, and other compensation of $82,633.55. Wife testified that Husband's salary was approximately $95,000 per year or more.

Husband testified that he traveled for business approximately six times in 2005, and then approximately nine times in 2006 when he was promoted to a manager. Husband testified that he could always schedule his future travel to coincide with times he would not have custody of Daughter, and that a right of first refusal was acceptable if he needed to travel during his custody. Wife also agreed to a right of first refusal. Wife requested that no "make-up time" be allowed after traveling because it disrupted her family plans.

Wife had been employed at Reuters America in the payroll department, with a 2005 income of $58,038.59. Wife quit her job at Reuters on April 28, 2006, because she was being asked to engage in frequent travel, including a request that she spend six weeks in India. Wife stated on the record that neither she nor Husband had family in town to watch Daughter on short notice. Wife testified that after she quit her job at Reuters, she cashed out $6,251.54 from her 401(k) in June 2006, for living expenses. Wife added that she thought she would be working and "never dreamed that [she] would be unemployed for that long." Wife gained new employment in January 2007 as a payroll manager for a small company with no traveling outside of Missouri. Wife testified that her new salary is $57,000 per year, without overtime.

Husband testified that he borrowed against his Boeing Voluntary Investment Plan, a 401(k) plan, to pay credit card debt that he carried in his name alone. He borrowed in 2002, 2005, and 2006, totaling $21,675.25. Husband testified that he borrowed $15,000 or $16,000 in 2006, following the separation. Husband further testified that he paid about $10,000 to credit cards and the rest went to things like bowling, clothes for Daughter, and eating out. Husband testified that he paid off the first loans from 2002, and that two loans remain outstanding. Wife testified that the parties incurred no joint debts after the separation in 2004, and therefore requested that Husband's 401(k) account be divided equally without her being charged with Husband's loans.

Husband testified that during the separation, he paid for 100% of Daughter's child care expenses, all of her clothing, school expenses, food expenses, field trips, extracurricular activities, sporting events, hair appointments, and her cell phone. Husband was unaware of any clothing that Wife had purchased for Daughter, except flip-flops and a pair of tennis shoes. Wife testified that she provided food and clothing for Daughter, and she paid for Daughter's bowling, cooking classes, slumber parties, and movie theater tickets. Wife testified that she received no child support from Husband since the separation.

Husband inherited almost $90,000 from his deceased step-mother in 1994, before he was married to Wife. Husband testified that he received a retirement account of $15,266 as part of the inheritance, and that he transferred those funds into a Roth IRA in 2000, still in his name only. Husband introduced into evidence Exhibit 17, which included a death certificate, tax return, probate documents from the attorney handling his step-mother's estate, and a letter from the attorney stating that Husband received the Fortis First Trust IRA paid to him as a death beneficiary totaling $15,266. Exhibit 17 also included documents of an account statement for a Roth IRA listed in Husband's name only with Fidelity Investments, showing a transfer-in by check in the amount of $11,341.73 in May, 2000. Husband testified that the funds deposited into the Roth IRA account in 2000 were the same funds received from his inheritance, and which were transferred from Fortis, to Stifel Nicolaus, and then to Fidelity Investments. Husband testified that his Roth IRA account with Fidelity has continued, and that some portion of the account is now with his Roth IRA account at American Funds. Wife testified that Husband inherited some money from his step-mother, but Wife believed the $11,341.73 deposited into Husband's Roth IRA in 2000 came from the parties' savings.

Husband testified that he possessed Boeing Stock Options, valued at about $8000. Those options were not vested.

Following trial, and pursuant to the trial court's order, each party submitted his or her proposed findings of fact and conclusions of law. The trial court entered its Judgment of Dissolution, Division of Property and Debts, and Parenting Plan (Judgment) on June 13, 2007.

Wife filed a Motion for Rehearing on June 27, 2007. In her motion, Wife raised several issues, including her allegations that the trial court failed to properly consider the issues presented in the dissolution proceeding by adopting for its Judgment Husband's proposed judgment and parenting plan verbatim. Wife further argued that many inconsistencies exist in the trial court's Judgment, and that the parenting plan is unsupported by the evidence presented at trial. Wife argued that the trial court needed to add or clarify language to include a right of first refusal if the custodial parent is unavailable, transportation for Daughter, and itinerary and contact information when traveling with Daughter outside of the St. Louis Metropolitan area. Wife further claimed that the Civil Procedure Form Number 14 (Form 14) adopted by the trial court incorrectly stated Husband's income, failed to give Wife credit for her child R.N., and incorrectly stated Wife's income. Further, Wife argued that the 34% custody credit awarded to Husband was too high, and that Wife should have received an extra tax deduction for Daughter, retroactive child support, and a wage withholding order against Husband. Wife also claimed the trial court incorrectly found that $15,000 inherited by Husband was used to establish Husband's IRA in 2000, the trial court failed to order either party to pay the marital residence's mortgage, utilities and upkeep until the house is sold, failed to set forth detailed procedure for selling the marital residence, failed to charge Husband with the loan balance he took from his Boeing Company Voluntary Investment Plan, failed to charge Husband with his cashed stock options of $13,433.81, failed to address Husband's failure to disclose his stock options, and should have awarded the parties with half of each of their bank accounts rather than Husband with his accounts and Wife with hers. Finally, Wife claimed that the trial court failed to order Husband to pay Wife's attorney fees.

On August 15, 2007, the trial court heard both parties' argument on Wife's Motion for Rehearing, granting part of Wife's requests but denying other parts. The trial court then entered an Amended Judgment of Dissolution of Marriage (Amended Judgment) on August 30, 2007, inter alia, calculating child support via Form 14 utilizing Husband's testimony as to his income, awarding Wife child support effective May 1, 2007, finding that $15,000 of Husband's Roth IRA was separate property from his inheritance, and charging Wife with the funds withdrawn from her retirement account to support herself after she quit her job at Reuters.

This appeal follows.

Points on Appeal

Wife raises five points on appeal. In her first point, Wife claims the trial court erred when it adopted Husband's Proposed Judgment virtually verbatim. Wife argues that the inconsistencies...