Potts v. Potts

• Decision Date: 23 February 2010
• Docket Number: No. WD 70196.,No. WD 70455.,WD 70196.,WD 70455.
• Citation: 303 S.W.3d 177
• Parties: Susan M. POTTS, Respondent, v. Raymond A. POTTS, II, Appellant.
• Court: Missouri Court of Appeals

303 S.W.3d 177

Susan M. POTTS, Respondent, v. Raymond A. POTTS, II, Appellant.

No. WD 70196.

No. WD 70455.

Missouri Court of Appeals, Western District.

February 23, 2010.

Michelle E. Jakobe, Lee's Summit, MO, for appellant.

Stanley Brian Cox, Sedalia, MO, for respondent.

Before LISA WHITE HARDWICK, P.J., JAMES M. SMART, JR., and ALOK AHUJA, JJ.

PER CURIAM:

Raymond Potts appeals the judgment of the Pettis County Circuit Court pertaining to the dissolution of his marriage to Susan Potts. He argues on appeal that the trial court erred with respect to awarding custody of the parties' children, finding the parties' prenuptial agreement to be unconscionable, classifying and dividing property, awarding maintenance, awarding child support, and ordering Raymond to pay Susan's attorneys' fees on appeal. The judgment is affirmed.

Facts

Raymond and Susan Potts were married on September 21, 1985. They separated on July 16, 2006, with Susan subsequently filing a petition for dissolution of marriage. They have four children. The oldest child is emancipated.

Raymond has been engaged in business as a roofing sheet metal contractor since 1979. Raymond's business is incorporated as Potts Contracting Group, Inc. Raymond owns all the shares in his sole name. The record shows that Raymond has a track record of disregarding corporate formalities in transferring funds back and forth between his corporation and himself, and accordingly owes taxes to the government. At the time of the marriage, Susan was 30 years old and worked at a bank as a secretary for a loan officer. Susan had previously worked as a floral designer. At the time of the dissolution trial, Susan worked 30 hours per week for $7.00 per hour coordinating delivery meal service to the elderly at a senior center.

The parties signed a prenuptial agreement the day before their marriage. The prenuptial agreement contained a full disclosure of the parties' assets and debts at the time of the marriage. The parties disagreed about the details surrounding the execution of the agreement.

Raymond testified to the following particulars concerning the prenuptial agreement. He had the agreement drawn up by his attorney several months prior to the marriage. He gave the prenuptial agreement to Susan for her review about a month prior to the wedding. Susan requested that Raymond change the provisions of the prenuptial agreement and suggested a formula so that she would get more money for each year that the parties remained married. Raymond's secretary notarized the prenuptial agreement. He remembers it being signed in his office prior to the end of business on the Friday before the wedding.

Raymond's business attorney also testified. He said that he prepared the prenuptial agreement at Raymond's request. He said he would have talked generally with Raymond, as he did with all his business clients, about the need to prepare a prenuptial agreement not less than 60 days prior to the wedding. Raymond's attorney recalled meeting with Raymond on July 10, 1985, and located his datebook reflecting that appointment. He recalled Raymond contacting him about a change that Susan wanted based on a formula that would provide more money for each year they were married. This was a formula that the attorney did not regularly use. Raymond's attorney testified that, though he made changes in the prenuptial agreement, he did not make any changes to the agreement a day or two prior to the wedding. He recalled that Raymond spoke to him about changes Susan wanted made to the agreement prior to wedding invitations being sent out. He recalled it because Raymond mentioned that he was not on the wedding invitation list. He did not testify that he was present when the agreement was signed, and he did not purport to know the date the agreement was signed.

Susan testified that she saw the prenuptial agreement for the first time on the Wednesday before the Saturday wedding. She said that although she did not read it completely, there was some language about receiving a certain amount of money in case of dissolution of marriage. Susan objected to some of what she read. Raymond agreed to have the agreement redone. Susan testified that she had never talked to Raymond's attorney and that she had not been in his office. She said that she received the revised agreement at 7:00 p.m. on the Friday night before the wedding, just as they were leaving for the rehearsal dinner. Susan said she read a little of the revised agreement. Susan testified that she did not sign the agreement in front of a notary public. She said that she had no legal training and, until recently, no one with legal training had explained to her the meaning of the agreement.

Both Raymond and Susan sought custody of the children. Raymond was romantically involved with another woman (Teresa) during his separation from Susan.

Raymond and Susan's children testified at the trial. Their 10-year-old son testified that he had stayed overnight with Raymond only twice in the previous six months. The son said this was less frequent than it had been because he did not like the fact that Teresa had started sleeping in Raymond's bed. Their 16-year-old son testified that he had never stayed overnight at Raymond's house because he did not "like it" at Raymond's house. He said that he did not like the "sleeping arrangements" at Raymond's house, and that Teresa and Raymond shared a bed. Their 18-year-old son testified that he had never spent the night at Raymond's house because he was not comfortable there. Their 21-year-old son was estranged from Raymond. He testified that he and Raymond do not talk.

The parties also disagreed over Raymond's financial position. Raymond gave the following testimony. Raymond's business, Potts Contracting Group, Inc., has suffered financially since approximately 2003. The trouble began when there were two instances of material suppliers providing defective material to the business for use in large projects. The defects were not discovered until after installation, causing the owner to refuse payment. After the petition for dissolution of marriage was filed, Susan took the prenuptial agreement out of Raymond's office. She told Raymond that she destroyed it. In reality, Susan hid the prenuptial agreement in a safe-deposit box and then gave it to her divorce attorney. Raymond obtained the prenuptial agreement during a deposition and submitted it to the trial court. Raymond needed the prenuptial agreement in order to obtain the commercial bonds that would enable his business to bid on large jobs. Without the prenuptial agreement, Raymond was unable to secure the needed bonds, and the business declined further. Raymond says his business corporation is deeply in debt and has not made a profit for several years. Raymond did not provide documentation supporting these assertions. Raymond offered some purported expert testimony by way of an accountant, but the court found that a lack of foundation was shown for the accountant's opinion. During the separation and pendency of the divorce, Raymond says he borrowed approximately $9,000 per month from the business to pay to Susan, and then $900 per week to pay temporary support.

The U.S. Individual Tax Return filed by the parties in 2005 included $98,500 in wages and $66,626 in rental real estate income plus additional sums for capital gains. Their 2006 U.S. Individual Tax Return included wages of $52,000 and $70,055 in rental real estate income.

The trial court determined that the asset known as Potts Contracting Group was nonmarital property. According to the prenuptial agreement, this asset was worth $627,373.57 at the time of the marriage. The trial court found that Raymond had received annually an average of $80,000 in salary, $44,000 in rent income, and $100,000 in other company withdrawals (presumably designed as tax-deferred withdrawals). The trial court found that Raymond had received roughly $12,000 per month in income. The court found no credible, documented evidence from which to conclude that his income pattern would not continue in the long term.

The trial court's judgment awarded Raymond and Susan joint legal custody of their unemancipated children; awarded Susan sole physical custody of their children and Raymond visitation; held the prenuptial agreement to be invalid; determined that all property was marital except for Raymond's ownership of the business and an outboard motor which was ruled to be Raymond's nonmarital property. The court determined that the profit from the real estate that was sold was a marital asset, and awarded it to Raymond along with the business. The court awarded Susan $237,931 in marital assets, but the court also granted Raymond an equalizing money judgment against Susan in the amount of $158,436, payable at the rate of $500 per month. Raymond was assigned responsibility for $107,000 in debts. Child support was ordered at $1,180 per month. The court ordered Raymond to pay Susan $2,500 per month as maintenance. The court awarded Susan $22,000 in attorneys' fees, while stating that the attorneys' fees were also a "division of property."

Raymond filed his notice of appeal. Susan subsequently filed a motion for attorneys' fees and costs for appeal and requested that Raymond pay her attorneys' fees and costs on appeal. After hearing arguments on the motion, the trial court ordered Raymond to pay $5,000 for Susan's attorneys' fees and costs on appeal. Raymond's appeal of that ruling was consolidated with his other points.

Standard of Review

"In a court-tried case, the decree of the trial court must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law." Kester v. Kester, 108 S.W.3d 213, 218 (Mo.App.2003). "[W]e review the evidence and inferences in the light most favorable to the trial court's decision and disregard all contrary evidence and...