Plager v. Plager

• Court: Missouri Court of Appeals
• Writing for the Court: GARY M. GAERTNER
• Citation: Plager v. Plager, 426 S.W.3d 689 (Mo. App. 2014)
• Decision Date: 18 March 2014
• Docket Number: No. ED 99203.,ED 99203.
• Parties: Kevin PLAGER, Appellant, v. Tiffany PLAGER, Respondent.

426 S.W.3d 689

Kevin PLAGER, Appellant,

v.Tiffany PLAGER, Respondent.

No. ED 99203.

Missouri Court of Appeals,

Eastern District,

Division Five.

March 18, 2014.

Cherlyn M. Crosby, Brittany A. Brown, St. Peters, MO, for appelant.

Alexandra M. Hart, Clayton, MO, for respondent.

Introduction

GARY M. GAERTNER, Jr., Judge.

Kevin Plager (Husband) appeals from the trial court's judgment dissolving his marriage to Tiffany Plager (Wife). On appeal, Husband raises several points challenging the distribution of marital property and debts, the child support award, and the retroactive child support award. We reverse and remand the child support award and the associated retroactive child support amount for the trial court to reconsider Husband's self-employment income in light of the Form 14 Directions. In all other respects, we affirm.

Background

A brief summary of the facts follows. Additional facts will be addressed as needed throughout the analysis. The parties married in 2000, and two children were born of the marriage. The parties separated in 2010, and Husband filed a petition for dissolution in August of 2010. Wife filed a counter petition for dissolution.

Following trial, the trial court dissolved the marriage. The court awarded Wife sole legal custody and both parties joint physical custody of the two children; ordered Husband to pay Wife the amount of $903 per month in child support, retroactive to the date he filed the petition for dissolution; and ordered the division of marital property and debts. This appeal follows.

Discussion

Point I

In his first point on appeal, Husband asserts that the trial court erred by failing to make written findings pursuant to his Rule 73.01¹ request. Husband reasserts this argument in various sub-points under Points II through VI. We address all six identical allegations here exclusively.

Rule 73.01(c) provides that “[t]he court may, or if requested by a party shall, include in the opinion findings on the controverted fact issues specified by the party.... All fact issues upon which no specific finding are made shall be considered as having been found in accordance with the result reached.” The provisions of Rule 73.01 are mandatory where a party properly requests findings of specific fact issues. Valentine v. Valentine, 400 S.W.3d 14, 20 (Mo.App. E.D.2013). Nevertheless, the failure of a trial court to make such findings mandates reversal only when the trial court's failure to issue requested findings materially interferes with appellate review. Id. The appellate court will affirm if the record supports the judgment or if the court makes findings that substantially comply with a party's requests. Id. Here, the Judgment and its findings, while not exemplary, are sufficient to allow for appellate review, and thus any alleged Rule 73.01 errors are not grounds for reversal.

Point denied.

Points II–V

In Points II through V Husband challenges various aspects of the trial court's distribution of marital property and debt, arguing the court erred or abused its discretion in dividing the marital property and debt, in that the division was not equitable and was not supported by substantial evidence (Point II); failing to account for $1,000 Wife removed from the Plager Painting bank account (Point III); failing to determine whether Wife had dissipated $42,030.84 from the marital estate (Point IV); and dividing the marital debt, in that the division was not equitable and was not supported by substantial evidence (Point V).

1. Standard of Review

The trial court has broad discretion in dividing marital property and debt. Coughlin v. Coughlin, 823 S.W.2d 73, 75 (Mo.App. E.D.1991) (marital property); Donovan v. Donovan, 191 S.W.3d 702, 708 (Mo.App. W.D.2006) (marital debt). This Court will only interfere with the trial court's distribution of marital property if the division is so heavily and unduly weighted in favor of one party that it amounts to an abuse of discretion. Slattery v. Slattery, 185 S.W.3d 692, 697–98 (Mo.App. E.D.2006). We presume the trial court's division of property to be correct, and we require the party challenging the division on appeal to overcome that burden of presumption. Waite v. Waite, 21 S.W.3d 48, 51 (Mo.App. E.D.2000).

2. Division of Marital Property

In his second point on appeal, Husband argues the trial court abused its discretion in dividing the marital property, because the division was not equitable and was not supported by substantial evidence. We disagree.

In arriving at a just division of the marital property, the trial court should consider “all relevant factors.” Section 452.330.1.² Some factors to be considered are the economic circumstances of each spouse, the contribution of each spouse to the acquisition of the marital property, the value of the nonmarital property, the conduct of the parties during the marriage, and the custodial arrangements for any minor children. Section 452.330.1(1)-(5). The trial court has broad discretion in dividing marital property, and the division need not be equal as long as it is fair and equitable under the circumstances. Neal v. Neal, 281 S.W.3d 330, 341 (Mo.App. E.D.2009).

The court here awarded Husband marital assets of approximately $10,185 plus whatever amount was in his Plager Painting bank account,³ which represented 22% of the marital asserts, and awarded Wife marital assets of approximately $36,007,⁴ which represented the remaining 78% of the marital assets. Looking at the complete record, it does not appear that the trial court failed to consider or misapplied the Section 452.330.1 factors in making its distribution. See Slattery, 185 S.W.3d at 698.

The trial court explicitly stated that it had considered several of the relevant factors. First, the court noted the relatively equal earning power of each spouse. See Section 452.330.1(1). Second, as for the contribution of each spouse to the marital property, the record revealed that Wife had contributed $44,000 of her nonmarital property as a down payment for the marital residence. See Section 452.330.1(2). The court noted that after the separation, Husband lived in the marital residence for approximately one year until the home was lost in foreclosure, during which time he made two mortgage payments. The parties' mortgage payments were $1,400 per month before the foreclosure. Despite Wife's nonmarital contribution to the marital residence, when the home was lost in foreclosure due to Husband's failure to make mortgage payments, the parties owed $17,919. The court was within its discretion to give Wife credit for her $44,000 contribution to the marital residence, which we find that it clearly did. See Neal, 281 S.W.3d at 341.

Third, the court explicitly considered each party's nonmarital property. See Section 452.330.1(3). The court noted Wife's nonmarital Roth IRA; however, it determined that her nonmarital Toyota Four Runner had been gifted to the estate and was now in the sole possession of Husband. Fourth, as for the conduct of the parties, the court found “there was no credible evidence of any history or pattern of domestic violence between the parties,” but noted the marital residence was foreclosed upon after Husband failed to make regular payments despite living there. See Section 452.330.1(4).

Again, the division of marital property need not be an equal division, so long as it is fair and equitable under the circumstances. Neal, 281 S.W.3d at 341. Here, substantial evidence supported the trial court's distribution of assets. Most persuasively, it appears that Husband benefited substantially from Wife's nonmarital contributions to the marital estate both during the marriage and after the separation. The evidence showed Wife contributed substantial nonmarital funds to the marital residence and that Husband failed to make regular mortgage payments after the parties' separation, despite living in the marital residence. But for Wife's nonmarital contribution, the parties' mortgage indebtedness following the foreclosure would have been substantially higher.

Moreover, Wife contributed both parties' vehicles to the marital estate. She gifted her nonmarital Toyota Four Runner to the marital estate, and the vehicle, valued at $4,000, was distributed to Husband in the dissolution. The record further showed that the vehicle Wife drove, a Toyota Highlander valued at $20,000, was actually purchased by Wife's mother and that Wife was repaying her mother for the vehicle at a rate of $150 per month.⁵ In light of the parties' relative contributions to the marital estate and approximately equal future earning power, we see no abuse of discretion in the trial court's division of property.

Husband here has failed to overcome the presumption that the trial court's division of property was correct. See Waite, 21 S.W.3d at 51. Thus, any further discussion of the trial court's division of property would not be profitable. See Weant v. Weant, 622 S.W.2d 789, 790 (Mo.App. W.D.1981) ( per curiam ) (trial court's decision regarding distribution of marital property is “so clearly within the trial court's discretion that no extensive discussion would be profitable”).

3. Division of Marital Debt

Also in his second point on appeal and again in his fifth point on appeal, Husband argues the trial court abused its discretion in dividing the marital debt, because the division was not equitable and was not supported by substantial evidence. We disagree.

As for the trial court's division of marital debts, Husband was assigned a Commerce Bank credit card in his name only and 60% of the $17,919 mortgage indebtedness following the foreclosure on the marital residence, for a total debt of approximately $20,751. Wife was assigned a separate Commerce Bank credit card in both parties' names, a First Bank credit card in her name only, a Bank of America World Points credit card in her name only, and 40% of the foreclosure indebtedness, for a total debt of approximately $11,850.

This Court...