Nelson v. Nelson
| Citation | 195 S.W.3d 502 |
| Decision Date | 11 July 2006 |
| Docket Number | No. WD 65405.,WD 65405. |
| Parties | Stacy Renee NELSON, Respondent, v. Mark Eugene NELSON, Appellant. |
| Court | Court of Appeal of Missouri (US) |
Tammy J. Glick, Platte City, MO, for Respondent.
Rob A. Redman, Kansas City, MO, for Appellant.
Before EDWIN H. SMITH, C.J., and NEWTON and HOLLIGER, JJ.
Mark Eugene Nelson appeals the judgment of the Circuit Court of Platte County dissolving his marriage to the respondent, Stacy Renee Nelson, with respect to the court's: (1) division of marital property; (2) award of physical custody of the parties' two unemancipated, minor children; and, (3) award of child support.
The appellant raises five points on appeal. In Point I, he claims that the trial court erred in finding, in its division of the parties' marital property, that Mark's Power Wash, marital property that was awarded to the appellant, had a fair market value (FMV) of $62,060 because it was not supported by the record in that the appellant "testified at trial that the value of his sole proprietorship `Marks [sic] Power Wash' was zero dollars." In Point II, he claims that the trial court erred in finding, in its division of the parties' marital property, that the FMV of the parties' residence was $110,000 because there is nothing in the record from which the trial court could reasonably infer that the FMV of the parties' residence was $110,000, "at the time the court executed the Judgment Decree of Dissolution of Marriage," which is, by law, the requisite time frame. In Point III, he claims that the trial court erred in awarding the respondent child support of $840 per month, as calculated pursuant to Civil Procedure Form 14, based on the imputation of $3,000 in gross monthly income to the appellant, because there was no evidence in the record from which the trial court could have found, as required for the imputation of income in determining child support, that he was purposefully unemployed or underemployed. In Point IV, he claims that the trial court erred in awarding the respondent child support of $840 per month, as calculated pursuant to Form 14, because its calculation included, as "extraordinary child rearing costs," $763 a month in tuition for the parties' children to attend Life Christian Academy, which was not supported by the record. In Point V, he claims:
The trial court erred in granting sole custody of the two minor children born of the part[ies'] marriage to appellee subject to appellant's parenting time because the trial court's decision was against the weight of the evidence, not supported by substantial evidence and the court misapplied the law in that the trial court failed to consider all relevant statutory factors in making its decision to award sole custody of the two minor children to appellee.
We affirm, in part, and reverse and remand, in part.
The parties were married on November 22, 1985, in Oklahoma City, Oklahoma, and they separated on July 20, 2004. Two children were born of the marriage: Kyle, born February 10, 1995; and, Garrett, born May 19, 1998.
On July 22, 2004, the respondent filed a petition for dissolution of marriage in the Circuit Court of Platte County. The appellant filed his answer and cross-petition on September 20, 2004. The respondent sought sole legal and physical custody of the children, while the appellant sought joint legal custody and sole physical custody. Both parties sought a fair and equitable division of the marital property.
On March 21, 2005, the petitions of the parties were taken up and heard. The trial court entered its judgment dissolving the parties' marriage on April 13, 2005. In the judgment, the respondent was awarded sole legal and physical custody of the parties' children, with visitation to the appellant. As to child support, the appellant was ordered to pay the respondent $841 per month. In calculating its award, the trial court rejected the Form 14 calculations of the parties and did its own. In its Form 14, the trial court found that the appellant had a gross monthly income of $3,000. In its findings, the court indicated that this amount was "imputed." The court's Form 14 included, as extraordinary child rearing costs, $763 in educational expenses for the parties' children to attend a private school, Life Christian Academy. With respect to its division of marital property, the trial court awarded, inter alia, the appellant "Mark's Power Wash," which it valued at $62,060. The court awarded, inter alia, the respondent the parties' residence, which it valued at $110,000.
This appeal follows.
In Point I, the appellant claims that the trial court erred in finding, in its division of the parties' marital property, that Mark's Power Wash had a FMV of $62,060 because it was not supported by the record. Specifically, he claims that the trial court's valuation of Mark's Power Wash was not supported by the record in that he "testified at trial that the value of his sole proprietorship `Marks [sic] Power Wash' was zero dollars."
We are to affirm the trial court's division of marital property, unless it is improper under Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or it constitutes an abuse of discretion. Sullivan v. Sullivan, 159 S.W.3d 529, 534 (Mo.App. 2005). Hence, we review first to determine whether the trial court's division of marital property is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. And, if it passes muster, under Murphy v. Carron, we then review for an abuse of discretion. In our review, we are to presume that the trial court's division of property was correctly decided. Id. The appellant has the burden of overcoming that presumption. Id. In our review, we are to view the evidence in the light most favorable to the trial court's decree and are to disregard any evidence to the contrary. Thill v. Thill, 26 S.W.3d 199, 203 (Mo.App.2000).
Section 452.330,1 which governs the division of property in a dissolution proceeding, sets forth a two-step process that is to be followed by the trial court: (1) the court must first set aside to each spouse his or her non-marital property; and (2) then divide the marital property and debts in such proportions as the court deems just. Sullivan, 159 S.W.3d at 534. The division of marital property need not be equal, but must be fair and equitable given the circumstances of the case. Id. Section 452.330.1 provides, in pertinent part, that in fashioning a fair and equitable division of marital property, the trial court is required to consider all relevant factors, including:
(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.
The five statutory factors of § 452.330.1 are not exclusive, and there is no formula determining the weight to be given to the factors in dividing the marital property. Sullivan, 159 S.W.3d at 535. Although the trial court is not expressly required to assign values to marital property, "evidence from which the value of the marital property can be determined must appear." Id. (quoting Spauldin v. Spauldin, 945 S.W.2d 665, 669 (Mo.App.1997)). Thus, a trial court is "prohibited from entering a valuation of marital property not supported by the evidence at trial, but [it], nevertheless, enjoys broad discretion in valuing marital property." Id. (quoting Farley v. Farley, 51 S.W.3d 159, 164 (Mo. App.2001)). The parties bear an equal burden to present evidence as to the value of marital property. Id.
The object of any valuation of a business is, of course, to determine its FMV. Thill, 26 S.W.3d at 203. "`Fair market value' is the `price which the property in question would bring when offered for sale by one willing, but not obliged to sell it, and it is bought by one willing to purchase it, but who is not compelled to do so.'" Shelby v. Shelby, 130 S.W.3d 674, 684 (Mo.App.2004) (citations omitted). No one formula or method of determining value is binding or conclusive. Thill, 26 S.W.3d at 203. The judicial determination of the FMV of marital property must be an informed judgment, but is not susceptible to determination by any precise mathematical determination. Id. Hence, the trial court can accept the opinion of one expert as to the value over another and can prefer one method of valuation over competing methods based on the particular facts of the case and the circumstances of the corporate entity involved. Id.
The appellant claims, in this Point Relied On (PRO), that the trial court erred in finding that Mark's Power Wash had a FMV of $62,060 in that he "testified at trial that the value of his sole proprietorship `Marks [sic] Power Wash' was zero dollars." In so claiming, the appellant misunderstands our review. The fact that he testified in a manner that was contrary to the trial court's decision is irrelevant under our standard of review. Thill, 26 S.W.3d at 203. The trial court was free to believe or disbelieve all, part or none of the appellant's testimony as to the FMV of Mark's Power Wash. Id. In finding as it did, that it had a FMV of $62,060, the trial court obviously disbelieved the appellant's testimony that it had a FMV of zero.
The respondent testified at trial that Mark's Power Wash had a FMV of $62,060. She based her valuation on a statement of assets and liabilities the parties submitted to secure a bank loan in July of 2004. This statement...
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