Parciak v. Parciak

• Decision Date: 07 August 2018
• Docket Number: No. ED 105648,ED 105648
• Citation: 553 S.W.3d 446
• Parties: Matthew PARCIAK, Respondent, v. Blanca PARCIAK, Appellant.
• Court: Missouri Court of Appeals

553 S.W.3d 446

Matthew PARCIAK, Respondent,

v.Blanca PARCIAK, Appellant.

No. ED 105648

Missouri Court of Appeals, Eastern District, DIVISION TWO.

FILED: August 7, 2018

FOR APPELLANT: Michelle J. Spirn, Alexandra D. Johnson, 7700 Bonhomme Avenue, Suite 325, Clayton, Missouri 63105.

For Respondent: Benicia Baker-Livorsi, #6 Westbury Dr., St. Charles, MO 63301.

ROY L. RICHTER, Judge

Blanca Parciak ("Wife") appeals and Matthew Parciak ("Husband") cross-appeals from the trial court's judgment of dissolution ("Judgment"), inter alia , dissolving their marriage; awarding Wife non-modifiable maintenance, terminable upon the earliest of a listed event to occur; awarding the parties joint legal and physical custody of their two children; ordering Husband to pay child support; and dividing their property, assets and debt. We affirm in part and reverse and remand in part.

I. Background

Wife and Husband were married on November 8, 1997. They met in the country of Peru, where Wife was a lawyer. Wife entered the United States in 1998. They have two daughters born of the marriage in the years 2000 and 2004. During the marriage, the parties lived at the marital home in Wright City, valued at $350,000 with a mortgage of $63,000. The parties separated on March 15, 2015, and filed for divorce on January 6, 2016.

Husband is employed as a senior vice-president for product and consulting services at MasterCard. He receives compensation in the form of a base salary, a cash bonus, and stock options. The trial court's Form 14 assigned Husband a monthly gross income of $50,037.

Although Wife has a law degree from Peru, she has never practiced law. She cannot practice in the United States without attending law school and passing the bar exam. She previously worked with the Ministry of Foreign Affairs. After moving to Missouri, Wife earned a Master's Degree in Business Administration from Fontbonne University. Wife has only worked full-time for short periods during the 18-year marriage; she worked for a few months at MasterCard as an administrative assistant, but left when she accepted a job at Citibank where she worked in 2002 as a call center representative for a higher salary of $29,000 per year. Wife quit that job after three months as well. Wife has been the primary caretaker of the parties' children since their birth. Speaking English, Spanish, and some Portuguese, Wife occasionally worked part time as a translator during the parties' marriage, but she did not earn enough income to report it for taxes. Wife agrees she still possesses the necessary skills to work as a translator.

During the pendency of the case, Wife started working part-time by forming her own photography business, Blanca Parciak Photography, LLC, around 2015. The company limits itself to photographing horses and high school seniors. The business has not earned a profit and lost $14,126 in 2015. Wife testified that she was not able to do much income producing work during the first year due to her depression from the divorce and her focus on the children. The business was awarded to Wife in the division of property. Wife has post-divorce plans to spend the first year after the divorce trying to establish herself in the industry and, if she is unsuccessful after three years, she would seek additional employment. When questioned about the photography business, Wife initially stated she wasn't sure how profitable it could be. The trial court asked her how long she intended on pursuing the business before determining that it wasn't profitable and Wife answered, "So I would imagine three years, something like that. And then I would have to get another job if it doesn't work." When Wife was asked if she had given any thought to her backup career, she had not thought of anything else since she stated that making sure her children were emotionally stable and caring for the horses combined to make a full-time job. Wife's proposed Form 14 suggested that the court impute minimum wage to her for her gross monthly income, totaling $1,335 monthly.

At trial, Wife sought modifiable maintenance of $12,000 per month and an additional $3,000 per month for the taxes on the maintenance. Husband testified that Wife's reasonable expenses were approximately $7,917 per month. While the divorce was pending, Husband had his paycheck split so that half went to his checking and the other half went into Wife's checking account. Wife would pay the mortgage on the marital home, bills, and other expenses with these funds.

The trial court concluded that Wife lacked sufficient property and did not earn sufficient income to satisfy her reasonable needs, "although she has the education and ability to earn substantially more in the very near future." The court awarded Wife non-modifiable maintenance of $10,000 per month, commencing June 1, 2017, and terminable upon the earliest of the following to occur: the parties' youngest child's graduation from high school, Wife's sale of the Linneman Lane property, or the occurrence of a statutory provision. The parties were awarded joint legal and physical custody of their children and Husband was ordered to pay child support of $918 per month for two children and $519 per month for one child.

The trial court equally divided Husband's 401k savings plan, restricted MasterCard stock, and 2016 net cash bonus between the parties, totaling approximately $945,000 each. Each party received his or her own personal property. Each also was awarded three checking accounts and all credit card debts in their own names. Husband was awarded 100 percent of KAP Sport Horses, LLC, a $130,000-valued business entity which owned two horses primarily used by the parties' oldest daughter and incurs ongoing expenses of approximately $79,000 per year. He was awarded the 2004 Jeep Wrangler, 2012 Kia Optima, and the parties' tractor and four-wheeler. Wife was awarded the marital home and ordered to assume full liability for the mortgage. She also was awarded the 2012 Kia Sorento and 100 percent of her photography business, which was valued at $4,000-$5,000.

Wife requested that Husband pay her attorney's fees. Wife had paid her attorney $3,700 as of the date of trial, but her lawyer estimated her billable time to be $8,537. The trial court ordered both parties to pay their own attorney's fees.

This appeal follows.

II. Discussion

Wife raises two points on appeal. First, she alleges the trial court erred in effectively limiting the duration of her maintenance to five years because there is no evidence in the record of any substantial impending change in Wife's financial circumstances which will allow her to meet her reasonable needs without financial support from Husband.

Second, Wife alleges the trial court erred in ordering Wife to pay her own attorney's fees because the trial court abused its discretion in that it failed to consider the significant difference between the parties' incomes and their financial resources.

In response, Husband first argues that both of Wife's points should be dismissed pursuant to Rule 84.04, and then that the trial court did not err as a matter of law. Husband alleges on cross-appeal that the trial court erred as a matter of law in ordering Husband to quit claim his interest in the marital home to Wife while Husband remained liable on the $63,000 mortgage on the home with Wells Fargo Bank because Section 452.330, RSMo. 2000,¹ requires the trial court to divide all marital debt while entering an equitable division of marital property. Husband contends the trial court failed to fully divide all marital debt, the judgment in its current form is inequitable in that Husband remains liable on the $63,000 mortgage with the bank while being ordered to relinquish his security interest protecting the debt, and the judgment, in its current form, subjects Husband to the risk that Wife might default on the mortgage while retaining the only possessory real property interest and leading the creditor to Husband for the deficiency.

A. Standard of Review

This Court must sustain the trial court's judgment in a dissolution case "unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976) ; see also Landewee v. Landewee, 515 S.W.3d 691, 694 (Mo. banc 2017). This Court accepts as true the evidence and reasonable inferences therefrom in the light most favorable to the trial court's judgment, and disregards all evidence and inferences to the contrary. In re Marriage of Hillis, 313 S.W.3d 643, 644 (Mo. banc 2010). "The burden of demonstrating error is on the party challenging the divorce decree." Hernandez v. Hernandez, 249 S.W.3d 885, 888 (Mo. App. W.D. 2008).

B. Maintenance of limited duration and non-modifiable

Wife argues the trial court erred in limiting the duration of her maintenance to no more than five years because there is no evidence of any substantial impending change in her financial circumstances to allow her to meet her reasonable needs without financial support from Husband, that the maintenance-terminating conditions set out by the court are "wholly arbitrary," and that the court should enter a judgment ordering modifiable maintenance. Husband, however, argues that Wife's point does not comply with Rule 84.04(d). Husband contends that the point does not raise issues as to the court's decision to render the maintenance judgment nonmodifiable and thus, that issue is not before this Court. Although the issue of non-modifiable maintenance is not included in Wife's point relied on, we are permitted to make a plain error review of matters affecting substantial rights, which, although not properly preserved for appellate review, may have resulted in a manifest injustice or a miscarriage of justice. Rule 84.13(c); Sertoma Bldg. Corp. v. Johnson, 857 S.W.2d 858, 859 (Mo. App. S.D. 1993). We exercise our discretion to...