Pickering v. Pickering
| Decision Date | 06 July 2010 |
| Docket Number | No. WD 71489.,WD 71489. |
| Citation | 314 S.W.3d 822 |
| Parties | Sherri PICKERING, Respondent, v. William Timothy PICKERING, Appellant. |
| Court | Missouri Court of Appeals |
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Michelle Illig, Overland Park, KS, for Appellant.
Carmen J. Carter, Raymore, MO, for Respondent.
Before Division I: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and CYNTHIA L. MARTIN, Judge.
Appellant William Timothy Pickering ("Husband") appeals the judgment entered by the Circuit Court of Cass County, the Honorable Daniel W. Olsen presiding. The circuit court's judgment dissolved Husband's marriage to Respondent Sherri Pickering ("Wife"); awarded joint custody of the parties' children; entered a parenting plan; calculated and ordered child support for Husband to pay to Wife; divided marital assets between the parties, finding that Husband owed Wife an equalization payment; and awarded Wife her attorney's fees. Husband raises thirteen points on appeal, challenging almost every aspect of the circuit court's judgment. We affirm in part, reverse in part, and give such judgment as the trial court ought to have given. Rule 84.14.1
Husband and Wife married in 1990. They had two children who, at the time of trial, were seventeen and thirteen years old.
On December 25, 2006, Husband informed Wife that he had been unfaithful and that he wanted to dissolve the marriage. The parties officially separated in May of 2007. On May 24, 2007, Wife filed a petition to dissolve the marriage.
From May of 2007 until August of 2008, Husband made mortgage payments on the marital home. Wife lived in the home, and Husband lived in an apartment. The mortgage on the marital home ("the mortgage") varied between $1,900 per month and $2,167 per month. Husband also paid $811 per month in rent for his own apartment. Upon selling the marital home in August of 2008, the parties agreed that Husband would pay Wife $750 per month as child support. Before that time, Husband had not paid any child support or maintenance. According to an understanding between the parties,3 before they sold the marital home, Husband had paid the mortgage in lieu of paying child support and maintenance.
According to Husband, while he was paying the mortgage, his expenses exceeded his income, and therefore he liquidated various marital assets so that he could continue making the mortgage payments. He did so without informing Wife and without giving her any of the proceeds. These assets were a 401k worth $44,561.40 (after penalties and taxes, Husband received $31,200); a truck worth $8,800; and a generator worth $1,400 (collectively, "liquidated marital assets").
The circuit court held a bench trial on March 6, 2009. At trial, Wife argued that Husband squandered the liquidated marital assets. The court found that Husband had failed to prove that he used the proceeds of these assets for legitimate purposes. Husband spent a portion of the money on a trip to Las Vegas with his girlfriend (although she paid her own expenses), which the court found did not qualify as a legitimate expenditure. Further, the court found that Husband could only account for $27,500 of the funds ($12,000 of which was paid to Husband's attorneys), which was "far less than the proceeds of the sale of the three marital assets." Therefore, the court attributed $20,000 to Husband in the division of marital assets ("$20,000 attribution"). However, the court did not explain how it arrived at $20,000.
The trial court found that the parties had other marital assets totaling $28,798.82. To calculate the total amount of marital assets, the court added the $20,000 attribution to the $28,798.82 in other assets. Husband was in possession of an account worth $6,571. Thus, the court found that $26,571 (the $20,000 attribution plus value of the account) worth of marital assets were effectively in Husband's hands. The court ordered the marital assets divided equally. As noted, the total amount of marital assets was $48,798.92. One-half of that is $24,399.41. Because the court had found that Husband already effectively had $26,571 in his hands, it ordered Husband to pay Wife the difference between that amount and one-half of the total marital assets, or $2,171.59 ("equalization payment").
The trial court also awarded Wife her attorney's fees. The court found that Husband was in a better financial position to pay the fees and that his conduct during the marriage, including infidelity and the unauthorized liquidation of marital assets, entitled Wife to an attorney's fee award.
The trial court further ordered Husband to pay child support in the amount of $956 per month. In calculating child support pursuant to Missouri Supreme Court Rule Form 14 ("Form 14"), the court attributed an income of $2,732 per month to Wife and $6,944 per month to Husband. The court also found that Wife paid $246 per month in "Other extraordinary child rearing costs" and ordered Husband to pay his proportional share of that amount.4
Husband argued that the court should impute more income to Wife than she was currently earning as a teacher. Wife had worked as a nurse until 2004, when she and Husband agreed that she should become a teacher, so that she could spend more time with the children. Husband testified that Wife had the capacity to make more money as a nurse and also that she could make more money as a teacher in a different school district. Husband asked the trial court to impute $3,000 per month as Wife's income, which was more than she currently made but less than what he thought she could make as a nurse. The trial court refused to impute income to Wife, calculating her income as $2,732 per month (her actual salary at the time of trial). Further, Husband argued that his income should be less than the $6,944 projected by the court in its Form 14 because, although that amount was close to his monthly income at the time of trial, that figure was based in part on commissions that he earned, and there was no guarantee that he would continue to earn commissions at his current rate.
The court awarded joint legal and physical custody of the children. Previous to the court's order, the children alternated weeks residing with each parent, and the children testified that they wished to continue with this arrangement. Husband asked the court to preserve this arrangement, and Wife asked that the court order that the children were to reside with her, except for every other weekend, Wednesday evenings, and alternating weeks in the summer. The court ruled that the children would reside with Wife except every other week from 6:00 p.m. Friday until Thursday morning the following week. In the summer, custody would alternate one week with Husband, the next with Wife.
Prior to their separation, the parties had always purchased health insurance for their children, separate from that available to them through the insurance provided by Husband's employer. They did so because Husband frequently changed jobs, and they wanted the children's health insurance to remain constant. Husband asked the court to order the parties to change the children's insurance from their current plan to the plan provided by Husband's employer, because the latter was less expensive. Wife testified that she wanted to keep the children on their current insurance policy because, as before, Husband's employment was subject to change, and the children's current policy covered pre-existing conditions and could be maintained after the children went to college. The trial court rejected the husband's request, ordering Wife to provide health insurance for the children and the parties to each pay 50% of the children's uninsured medical expenses.
The trial court entered judgment on April 30, 2009. On May 27, 2009, Husband filed a motion to amend the judgment. On August 7, 2009, the court held a hearing on Husband's motion. That same day, the court filed its Amended Judgment of Dissolution, which amended its original order in ways that are not relevant here.5 On September 8, 2009, Husband filed a second post-trial motion, which the court denied for lack of jurisdiction. This appeal follows.
In a court-tried case, our standard of review is that explained in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Martin v. Dir. of Revenue, 248 S.W.3d 685, 687 (Mo.App. W.D.2008). Accordingly, we will affirm the circuit court's judgment unless (1) it is against the weight of the evidence; (2) it is not supported by substantial evidence; or (3) the circuit court misstated or misapplied the law. Id. "The evidence is viewed in the light most favorable to the dissolution decree, and all contrary evidence is disregarded." Coffman v. Coffman, 300 S.W.3d 267, 270 (Mo.App. W.D.2009).
Husband argues thirteen points on appeal. For the sake of brevity and convenience, we group them into eight categories: the adoption of wife's proposed judgment and plan; squandered assets; equalization of assets; retroactive maintenance; child support; medical insurance; the parenting plan; and attorney's fees.
Husband argues that the trial court erred in adopting Wife's proposed judgment and parenting plan. We disagree, both because the error, if any, is not reversible in and of itself and because Husband failed to preserve it.
Although the verbatim—or near verbatim—adoption of a party's proposed judgment is strongly disapproved of, to do so is not per se reversible error and does not alter this court's standard of review. Accordingly, the circuit court's adoption of most of Wife's proposed judgment does not constitute reversible error, and we will affirm the judgment unless it cannot satisfy the Murphy v. Carron standard. Neal v. Neal, 281 S.W.3d 330,...
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