Rivers v. Rivers

• Decision Date: 27 June 2000
• Citation: 21 S.W.3d 117
• Parties: (Mo.App. W.D. 2000) Connie Lynn Rivers, a/k/a Connie W. Rivers, Respondent, v. Larry Woodrow Rivers, Sr., Appellant. WD57523 0
• Court: Missouri Court of Appeals

21 S.W.3d 117 (Mo.App. W.D. 2000)

Connie Lynn Rivers, a/k/a Connie W. Rivers, Respondent, v. Larry Woodrow Rivers, Sr., Appellant.

WD57523

Missouri Court of Appeals Western District

06/27/2000

Appeal From: Circuit Court of Clay County, Hon. Kathryn Elizabeth Davis

Counsel for Appellant: Michael Chester McIntosh

Counsel for Respondent: Steven Douglas Wolcott

Opinion Summary: The husband appeals the trial court judgment dissolving his marriage to the wife. He claims that the trial court erred in (1) failing to apply Louisiana law and recognize the parties' premarital agreement, (2) dividing marital property with offset of a 401(k) loan or consideration of the premarital agreement, (3) disproportionately dividing the marital property and ordering him to pay the wife for marital funds expended for an extra-marital affair, (4) imputing gross income of $125,000 to him for child support and maintenance purposes, and (5) including college expenses as part of child support.

Division III holds: (1) Where the husband and wife did not make an express choice as to which state's law governs interpretation of their premarital agreement executed in Louisiana, the Restatement Conflicts of Law section 188 criteria applies. Since the parties' premarital agreement essentially addresses property division of the parties in the event of dissolution of their marriage, the place of performance of the contract would be in Missouri, and the law of Missouri would be applied in determining whether the premarital agreement is valid and enforceable. Where the trial court expressly found that the parties' premarital agreement was made without full and complete disclosure by each party and complete understanding by each party as to the nature and extent of the other's assets and debts, the trial court did not err in finding the premarital agreement not valid under Missouri law.

(2) Where the record is unclear regarding whether a 401(k) loan was outstanding against the husband's 401(k) plan at the time the property division was to become effective, the cause is remanded to the trial court for a determination of whether a 401(k) loan existed and, if the court finds that a 401(k) loan existed at that time, for a determination of whether the loan was a marital debt to be divided according to section 452.330.1.

(3) Where sufficient evidence supports the trial court's division of marital property, the trial court did not err in disproportionately dividing the parties' marital property and ordering the husband to pay the wife for marital funds expended by him for an extra-marital affair.

(4) Where the trial court found that based upon the husband's employment qualifications, experience, and previous income history, he had the ability to earn $125,000 during 1999, the trial court did not err in imputing gross income of $125,000 to him for purposes of calculating child support.

(5) Where the record fails to indicate whether the parties' elder child had enrolled in "an institution of vocational or higher education" before October first following graduation from high school, whether the child continues to be enrolled for twelve hours of credit, and whether she is advancing satisfactorily as contemplated by the statute, the cause is remanded to the trial court for a determination of whether child support was awarded in accordance with section 452.340.5.

Lowenstein, P.J., and Holliger, J., concur.

Robert G. Ulrich

Larry Rivers, Sr., appeals the judgment of the trial court dissolving his marriage to Connie Rivers. He claims that the trial court erred in (1) failing to apply Louisiana law and recognize the parties' premarital agreement, (2) dividing marital property without offset of a 401(k) loan or consideration of the premarital agreement, (3) disproportionately dividing the marital property and ordering him to repay marital funds expended for an extra-marital affair, (4) imputing gross income of $125,000 to him for child support and maintenance purposes, and (5) including college expenses as part of child support. The judgment of the trial court is affirmed in part, reversed and remanded in part.

Facts

Larry Rivers, Sr. (Husband) and Connie Rivers (Wife) were married in Louisiana on May 21, 1977. The day prior to their marriage, the parties signed a premarital agreement in Louisiana that provided, in pertinent part:

1.

Larry and Connie shall be separate in property, and accordingly, they hereby formally renounce those provisions of the La. Civil Code and the laws of the State of Louisiana which establish a community of acquets and gains between husband and wife and agree that the partnership or community of acquets and gains shall not exist between them.

2.

All property and effects of Larry and Connie owned by him or her at the time of the celebration of the intended marriage, or acquired during the marriage are declared to be separate property, and that of Connie to be her separate and paraphernal property, and they and each of them do hereby expressly reserve unto themselves individually the entire administration of their respective movable and immovable property and the respective free enjoyment of each of their revenues.

3.

All income produced by either Larry or Connie after the celebration of the marriage shall be and is hereby declared to be separate property and that of Connie to be her separate and paraphernal property and they and each of them do hereby expressly reserve unto themselves individually the entire administration of their respective particular incomes and/or revenues.

After 21 years of marriage, Wife filed a petition for the dissolution of marriage in the Circuit Court of Clay County on January 15, 1999. Husband, who had practiced law in Louisiana for several years prior to moving to Missouri, acted as his own attorney during the dissolution proceedings.

The trial court entered Judgment of Dissolution of Marriage on June 15, 1999, and found "the Premarital Agreement entered into by the parties in Louisiana is not valid as a binding contract between the parties, based upon Missouri law, in that neither party disclosed their assets or debts existing at the time of the making of the agreement." The trial court's judgment ordered that: (1) the parties share joint custody of the parties' two children; (2) Husband pay $1,820 per month in child support, calculated on imputing gross income of $125,000 to Husband and including college tuition in extraordinary child rearing costs; (3) Husband receive furniture and bank accounts of approximately $4,000; (4) Wife receive furniture and bank accounts of $31,000; and (5) the parties divide equally the net proceeds from the sale of the marital residence and divide equally Husband's pension and 401(k) plan. The judgment also ordered Husband to continue payment of the marital residence mortgage until the residence is sold. Husband was also ordered to pay Wife $5,000 as a portion of the marital assets expended by Husband while engaged in an extra-marital affair. Husband's appeal followed.

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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The reviewing court defers to the trial court's determination of credibility and views the evidence and inferences therefrom in the light most favorable to the decree disregarding all contrary evidence and inferences. Jordan v. Jordan, 984 S.W.2d 878, 880 (Mo. App. W.D. 1999).

I. Premarital Agreement

In his first point of error, Husband contends that the trial court erred in finding the parties' Louisiana premarital agreement was not valid as a binding contract under Missouri law because, under conflicts of law rules, Louisiana law applied to recognition and enforcement of the premarital agreement in that the agreement was negotiated, signed, and executed in Louisiana, the parties were married in Louisiana and resided in that state for the first twelve years of the marriage. Section 452.330.2, RSMo Cum. Supp. 1998,¹ defines marital property in the context of the disposition of property in a Missouri dissolution proceeding. Subsection 452.330.2(4) provides that marital property includes all property acquired by either spouse subsequent to the marriage except "[p]roperty excluded by valid written agreement of the parties." The term "valid written agreement" in section 452.330.2(4) includes agreements valid under a sister state's law, as recognized by the Eastern District in Dardick v. Dardick, 948 S.W.2d 268 (Mo. App. E.D. 1997) and In re Estate of Arbeitman, 886 S.W.2d 644 (Mo. App. E.D. 1994)(recognizing antenuptial agreements executed in other jurisdictions). However, in those cases, the respective antenuptial agreements contained express choice of law provisions.

In this case, the parties to the premarital contract did not make an express choice as to which state's law governs interpretation of the contract if dissolution of the marriage were to occur in a state other than Louisiana. In the absence of an effective choice of law, Missouri uses the criteria found in section 188, The Restatement (Second) of Conflicts of Law (1971), in determining whether Missouri law, or that of a sister state should apply. When determining the state laws to be applied, the contractual contacts to be considered are: a) the place of contracting; b) the place of negotiation of the contract; c) the place of performance; d) the location of the subject matter of the contract; and e) the domicile, residence, nationality, place of incorporation and place of business of the parties. Restatement (Second) of Conflicts of Law section 188 (1971). These contacts are to be evaluated according to their relative importance with respect to the particular issue. Id.

Under the Restatement (Second) Conflicts of Law criteria, Missouri...