Pollard v. Pollard

• Decision Date: 28 May 2013
• Docket Number: No. WD 75647.,WD 75647.
• Citation: 401 S.W.3d 506
• Parties: Margaret A. POLLARD, Respondent, v. D.L. POLLARD, Appellant.
• Court: Missouri Court of Appeals

401 S.W.3d 506

Margaret A. POLLARD, Respondent,

v.D.L. POLLARD, Appellant.

No. WD 75647.

Missouri Court of Appeals, Western District.

May 28, 2013.

Bruce B. Brown, Kearney, MO, for respondent.

Kimberly N. Gray, Independence, MO, for appellant.

Before Division Three: JOSEPH M. ELLIS, Presiding Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

D.L. Pollard (“Husband”) appeals from the trial court's judgment and decree of dissolution of marriage with respect to its division of property. Husband contends that the trial court erred in (1) awarding Margaret Pollard (“Wife”) “her inheritance account,” presumably as nonmarital property, though not expressly designated by the trial court as either marital or nonmarital, because the account had been commingled with marital property; (2) awarding a 1919 Studebaker to Husband presumably as marital property, though not expressly designated by the trial court as either marital or nonmarital, because it was purchased by Husband prior to the marriage and was not commingled with marital property; (3) failing to designate all property marital or nonmarital before dividing the marital property; (4) failing to designate a value for all of the marital and nonmarital property as required to determine if the marital property was divided in a just manner; and (5) dividing the property because the division was not just and was against the weight of the evidence.

We affirm in part, reverse in part, and remand this matter for further proceedings.

Factual and Procedural History ¹

Husband and wife were married on September 11, 1976. The parties separated on October 23, 2009. No children were born of the marriage. On October 30, 2009, Wife filed a petition for dissolution of marriage. Husband filed an answer and a counter-petition for dissolution of marriage.

On June 28, 2010, a bench trial was conducted. Wife introduced a “Second Amended Property/Debt List & Valuation” (the “Property List”). The Property List detailed the parties' property and debts, and as to most items, whether the item was marital or nonmarital, its value, and a proposed disposition. To the extent Wife's proposed designation, value, or division for an item was objectionable, Husband reflected his competing view on the same Property List. The Property List was thus a stipulated exhibit, although it reflected contested positions as to certain items of property. The trial court admitted the exhibit “as an aid to the Court.”

On August 24, 2010, the trial court entered a judgment and decree of dissolution of marriage (“Decree”). The Decree dissolved the marriage, divided property, and awarded maintenance to Wife in the amount of two-hundred dollars per month. The Decree also ordered the parties to pay the debts “as set forth in the [Decree]” but failed to otherwise identify or divide any debts.

In dividing the property, the trial court stated, in pertinent part:

10. THAT [Wife] is awarded real estate located at 2081 Willow Lane, Wood Heights, Missouri. [Legal description].

11. THAT [Wife's] real estate located in or near Baldwin, Kansas, being approximately one hundred acres of agricultural land was and remains the non-marital property of [Wife] and is awarded to [Wife].

12. THAT [Wife] is awarded her “inheritance account” in North American Savings Bank ... approximate balance of thirty seven thousand ($37,000.00) dollars.

13. THAT [Husband] is awarded a checking account in Community Bank of Missouri[.]

14. THAT [Husband] is awarded checking accounts in Bank Midwest ... valued at two thousand six hundred ($2,600.00) dollars.

15. That [Wife] is awarded the following vehicles:

1. 1990 Cadillac Deville [ ]

2. “Commuter Car” [ ]

3. 1968 Ford Mustang [ ]

4. 4x4 Kabata Lawn Tractor

16. THAT [Husband] is awarded the following vehicles:

1. 2002 GMC Seriarra [sic] [ ]

2. 1919 Studebaker [ ]

3. 1956 MG (non-marital property)

4. 1940 Plymouth pickup (non marital property) [ ]

5. Dune buggy 8hp engine [ ]

17. THAT [Wife] is awarded all pets, dog beds and taxis.

18. THAT the following property is set aside to [Husband]:

1. Antique piano and bench

2. 22 pistol

3. 410 shotgun

4. Browning 12 gage

19. THAT [Husband] is awarded one leather chair ([Wife's] choice).

20. THAT the following items found to be marital property are set aside to [Husband]:

[List of eleven household items not of particular relevance to this appeal]

(Emphasis added.) The Decree also ordered that all “furniture and furnishings” then in each person's possession would be retained as that person's sole and separate property, and that each party would retain as their sole and separate property his or her personal property and effects.

On September 22, 2010, Husband filed a “motion for new trial and/or motion to reconsider, alternatively to vacate, reopen, correct, amend or modify judgment and decree of dissolution of marriage” (“Motion for New Trial”). Husband alleged that the trial court erred in its award of maintenance to Wife. Husband also generally complained that the division of property was not “just” or “equitable” pursuant to section 452.330.² The only specific objection raised by Husband, however, to the trial court's designation of property as marital or nonmarital involved Wife's inheritance account. Husband contended that the Decree appeared to treat the account as nonmarital (although it did not expressly so state) because it “awarded her inheritance account” to Wife. (Emphasis added.) Husband argued the account had been commingled and was marital.

After a hearing, the trial court entered a new judgment amending the Decree to find that no maintenance should be awarded to either party (“Amended Decree”). ³ The Amended Decree did not address Husband's claim that the inheritance account may have been improperly treated as nonmarital property. With respect to Husband's concern that the division of property was not “just” or “equitable,” the trial court noted that it had been limited in its ability to “value property set off to one party as compared to property set off to the other” by the scanty evidence of values offered by the parties at trial, particularly as to tangible personal property, including household items. The court characterized any inability to “compare the marital estate set aside to each party” as a failure of proof.

On December 13, 2010, Husband appealed the Amended Decree. Husband raised the same five points raised in this appeal, and a sixth point which alleged that the trial court erred in failing to divide marital debt. On February 28, 2012, this court disposed of Husband's appeal based on the sixth point relied on. Pollard v. Pollard, 363 S.W.3d 386 (Mo.App. W.D.2012) (“Pollard I ”). We concluded that although the Amended Decree generally ordered the parties “to pay the debts as set forth in the [Decree],” the Amended Decree was not a final, appealable judgment because it did not identify any debts to be paid, and thus did not classify, assign or divide the debts. Id. at 386. Noting that the record reflected that evidence of marital debt was presented to the trial court, we concluded that the Amended Decree effectively failed to “distribute” known marital property or debts. Id. at 387. As such, the trial court had not exhausted its jurisdiction, and the Amended Decree was not a final, appealable judgment. Id. (quoting Rogers v. Rogers, 253 S.W.3d 134, 137 (Mo.App. W.D.2008) (“[W]e must dismiss ‘an appeal where marital debts known to the [circuit] court are not addressed in its decree.’ ”)).

Because we were required to dismiss Husband's appeal for lack of jurisdiction based on the claim of error raised in his sixth point on appeal, we could not reach the merits of Husband's points one through five—the same points now reasserted by Husband in this appeal. Id. We suggested, however, that the trial court could take advantage of the dismissed appeal to “ ‘enter a new judgment covering the entire case.’ ” Id. (citation omitted). We instructed:

The effect of this dismissal is to recognize the jurisdiction of the trial court to enter a new judgment covering the entire case. Because the trial court has not been divested of jurisdiction, that court retains control over every phase of the case so that it may correct errors, or, in its discretion, modify or set aside orders or judgments until its jurisdiction is extinguished by the judgment becoming final and appealable. Either or both parties will then have the right to appeal the circuit court's new decree of dissolution.

Id. at 387–88 (quoting Rogers, 253 S.W.3d at 138–39).

On March 12, 2012, Husband filed a “motion to reconsider and to alter or amend the judgment [or] in the alternative motion for final judgment” (“Motion to Reconsider”) with the trial court. Husband again raised the complaint that the Amended Decree could be read to mistakenly characterize the inheritance account as Wife's nonmarital property. Husband also raised the complaint that Amended Decree could be read to mistakenly characterize the 1919 Studebaker as marital property. Husband further complained that the trial court had failed to designate all property as either marital or nonmarital as required by Section 452.330.1, and that in the absence of such a designation, it could not be determined whether a just distribution of marital property had been made. Husband also complained that the trial court had not designated values for all marital and nonmarital property. Finally, Husband complained that the distribution of property was not “just” or “equitable.”

On June 20, 2012, the trial court advised the parties by phone conference “that, suggestions to the contrary not withstanding [sic], the Court would not re-open all or part of the topic of division of marital and/or non-marital assets or any other asset issues, but would only consider, at a future hearing for that purpose only, the allocation of marital debt.” Consistently, at the subsequent hearing conducted to...