Pruitt v. Pruitt, ED 80594.

• Decision Date: 21 January 2003
• Docket Number: No. ED 80594.,ED 80594.
• Citation: 94 S.W.3d 429
• Parties: Judy PRUITT, Respondent, v. Dale Edward PRUITT, Appellant.
• Court: Missouri Court of Appeals

94 S.W.3d 429

Judy PRUITT, Respondent, v. Dale Edward PRUITT, Appellant.

No. ED 80594.

Missouri Court of Appeals, Eastern District, Division Two.

January 21, 2003.

COPYRIGHT MATERIAL OMITTED

Diane M. Monahan, Margulis, Grant & Margulis, P.C., St. Louis, MO, for appellant.

Todd N. Hendrickson, Clayton, MO, for respondent.

PAUL J. SIMON, Presiding Judge.

Dale Edward Pruitt (husband) appeals from the judgment entered by the Circuit Court of St. Louis County dissolving his marriage to Judy Pruitt (wife).

On appeal, husband contends the trial court erred in: (1) its distribution of assets in that the court did not make specific findings, preliminary to its distribution, as to whether the property set forth in the judgment was separate or marital; (2) awarding a percentage of husband's separate portion of his pension to wife as it is a misapplication of the law; (3) its distribution of property in that the court included property belonging to neither party and nonexistent property or, alternatively, income mislabeled as property, and the distribution was therefore not supported by the evidence; (4) its assignment of values to property in that the court did not properly use values at or near the date of trial or division and is therefore against the weight of the evidence; (5) its distribution of property in that the court's judgment specified its intent to divide the marital assets equally, but effectively failed to do so, or, alternatively, the trial court erred in its disproportional award of property to wife, making said division against the weight of the evidence; (6) its award of maintenance as the amount of the award is not supported by the evidence or, alternatively, it is against the weight of the evidence; (7) awarding $5000 in attorney's fees to wife to be paid by husband, in that such an award was against the weight of the evidence; and (8) its award of $5000 in attorney's fees on appeal to be paid by husband, in that such an award was plain error or an abuse of discretion as the court did not properly consider the financial resources of both parties. We affirm in part and reverse and remand in part.

The trial court's judgment will be sustained unless there is no substantial evidence to support its decision, its judgment is against the weight of the evidence, or it erroneously declared or applied the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). All evidence and permissible inferences therefrom are considered in the light most favorable to the trial court's decision, and all contrary evidence and inferences are disregarded. Chen v. Li, 986 S.W.2d 927, 931 (Mo.App. E.D. 1999).

In the light most favorable to the trial court's judgment, the record reveals that husband and wife were married on September 20, 1975. At the time of marriage, husband had been employed with Chrysler as a lineworker since March 26, 1973. Husband and wife separated permanently in November 1996.

Wife filed her petition for dissolution of marriage on April 10, 2000. Husband and wife had two children of the marriage, but both were emancipated prior to the filing of the petition.

In 1997, wife was awarded Supplemental Security Income (SSI) benefits due to the primary diagnosis of post-traumatic stress syndrome and depression. At the time of trial, she was unemployed and receiving $530 per month in SSI benefits.

At trial, wife testified that she had been hospitalized for depression around twenty times since 1985 and that she was unable to be employed on a daily basis. She testified that she was ailed by the physical illnesses of asthma, heart problems, back injuries, and fibromyalgia and rheumatoid arthritis. The trial court received the testimony of Dr. Ahmad V. Ardekani by way of his deposition in which he testified that wife was unable to be employed due to her medical conditions.

Wife testified that she would not continue to receive her SSI benefits upon the entry of an order of maintenance by the trial court.

At the time of trial, husband was employed as a carpenter at Chrysler, and his hourly wage was around $25.70, equating to approximately $53,000 annual income. However, husband worked as much as eighty-two hours per week during the years of separation from wife, including holidays and Christmas. In the years preceding trial, husband earned over $100,000 annually.

Husband and wife filed statements of income and expenses and statements of property before trial. Husband filed an amended statement of income and expenses and an amended statement of property on August 15, 2001, the date of trial. At trial, the court took judicial notice of its entire court file, including the financial statements offered by both parties.

On November 30, 2001, the trial court entered its judgment dissolving the marriage of husband and wife. In its judgment, the trial court divided property and ordered husband to pay wife maintenance in the amount of $2000 per month and attorney's fees in the amount of $5000.

Husband filed a notice of appeal on January 4, 2002. Subsequently, wife filed a motion for attorney's fees on appeal, which was granted on April 2, 2002. Husband was ordered to pay wife's attorney's fees on appeal in the amount of $5000. On May 13, 2002, husband filed a notice of appeal on the grant of attorney's fees on appeal, but he later dismissed said appeal.

On August 1, 2002, wife filed a motion for contempt, and on August 20, she filed a second motion for attorney's fees on appeal. On August 22, 2002, husband filed a motion to find the April 2, 2002, award of attorney's fees on appeal invalid. Both husband's motion to find the April 2, 2002 award of attorney's fees on appeal invalid and wife's August 22, 2002 motion for attorney's fees on appeal were granted. Husband was ordered to pay wife $5000 in attorney's fees on appeal.

Husband filed a notice of appeal of the award of attorney's fees on appeal. Upon the joint motion of husband and wife to consolidate the appeals for oral argument, the appeals were consolidated.

In his first point on appeal, husband contends the trial court erred in its distribution of assets in that the court did not make specific findings, preliminary to its distribution, as to whether the property set forth in the judgment was separate or marital.

Section 452.330 RSMo 2001 (all further references herein shall be to RSMo 2001 unless otherwise indicated) governs the disposition of property in dissolution actions. Pursuant to Section 452.330, the trial court must set apart to each spouse his or her separate property and divide the remaining marital property and marital debts "in such proportions as the court deems just after considering all relevant factors." Oetterer v. Oetterer, 60 S.W.3d 48, 52 (Mo.App. E.D.2001). Specific findings on whether assets are marital or separate property are a necessary antecedent of a subsequent just division of marital property. Id. It is not enough to apportion all of the property between the parties without first designating it as either separate or marital property, and failure to specifically identify property as marital or separate makes it impossible to determine whether the trial court made a just division of marital property in accordance with Section 452.330. Id.

Here, the trial court's judgment fails to properly designate the property divided therein as marital or separate property. Therefore, the judgment must be reversed and remanded for specific designation of the status of the properties and distribution in accordance therewith.

In his second point on appeal, husband contends the trial court erred in awarding a percentage of husband's separate portion of his pension to wife, as it is a misapplication of the law.

The trial court has wide discretion in dividing marital property. Gambrel v. Gambrel, 943 S.W.2d 314, 315 (Mo.App. E.D.1997). However, retirement benefits accumulated prior to marriage are not marital property and are not divisible. Id.

Husband testified that he began his employment with Chrysler on March 26, 1973. Husband and wife married on September 20, 1975. At the time of trial, Chrysler had employed husband for over twentyeight years. Based on the evidence before the trial court, only that portion of husband's pension benefits which accumulated after the date of marriage until the time of dissolution were marital property. Therefore, we reverse and remand to the trial court to divide the marital portion of husband's pension benefits and award husband the portion of his pension that is his separate property.

In his third point on appeal, husband contends the trial court erred in its distribution of property in that the court included property belonging to neither party and nonexistent property or, alternatively, income mislabeled as property, and the distribution was therefore not supported by the evidence. Husband addresses the trial court's valuation of the award of two pieces of marital property to husband: (1) a 1997 Harley Davidson motorcycle valued at $13,000; and (2) an annual cash bonus valued at $13,000 which was received by husband from Chrysler in February 2000.

As part of his argument,...