Rogers v. Rogers

• Decision Date: 27 May 2008
• Docket Number: No. WD 68175.,WD 68175.
• Citation: 253 S.W.3d 134
• Parties: Paul ROGERS, Appellant, v. Linda Lee ROGERS, Respondent.
• Court: Missouri Court of Appeals

253 S.W.3d 134

Paul ROGERS, Appellant, v. Linda Lee ROGERS, Respondent.

No. WD 68175.

Missouri Court of Appeals, Western District.

May 27, 2008.

Neysa L. Day, Kansas City, MO, for appellant.

J. Eric Mitchell, Clinton, MO, for respondent.

Before VICTOR C. HOWARD, C.J., JOSEPH P. DANDURAND, and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

Appellant Paul Rogers appeals the circuit court's Judgment Entry dissolving his marriage to Respondent Linda Lee Rogers. Because the trial court failed to address the distribution of a significant, presumptively marital debt which was the subject of testimony at trial, its judgment is neither final nor appealable; we therefore dismiss this appeal for lack of jurisdiction.

I. Introduction

On June 27, 2006, Appellant filed a petition for dissolution of marriage with the circuit court. Respondent filed an answer and counter-petition on July 13, 2006. After Appellant voluntarily dismissed his petition without prejudice, the case was tried on Respondent's counter-petition. Neither Appellant nor his counsel appeared at or participated in the trial.

On February 15, 2007, the circuit court issued its Judgment Entry dissolving the Rogers' marriage, and ordering that specific assets and debts be apportioned to Appellant and Respondent in their individual capacities.

Appellant asserts three Points on appeal. Because we have determined that we lack jurisdiction, we dismiss without addressing the merits of Appellant's claims.¹

II. Analysis

In his second Point Relied On, Appellant alleges that the circuit court erred in failing to divide all of the parties' marital debt. Specifically, Appellant states that there was evidence at trial of a debt to American Express incurred during the marriage, and that the circuit court erred by failing to order this debt's disposition in its judgment as required by § 452.330.1.²

"Section 452.330.1 governs the trial court's division of property in a dissolution and sets forth a two-step process for division of property: (1) the court must first set aside to each spouse his or her non-marital property; and (2) then divide the marital property and debts in such proportions as the court deems just." Bohon v. Bohon, 102 S.W.3d 107, 109 (Mo.App. W.D.2003)(citing Ballard v. Ballard, 77 S.W.3d 112, 116 (Mo.App. W.D.2002)). Complete compliance with this two-step process is mandatory under the statute's plain terms: "the court shall set apart to each spouse such spouse's nonmarital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors." § 452.330.1 (emphasis added).

"Section 452.330.1 requires a trial court to divide the parties' marital debts as well as their marital property." In dividing the marital property and debts, "the trial court must make specific findings as to whether each asset before the court is marital property subject to division, is non-marital property to be set aside, or is property over which the dissolution court has no control."

Gilstrap v. Gilstrap, 238 S.W.3d 196, 198 (Mo.App. W.D.2007) (citations omitted); accord, Jonusas v. Jonusas, 168 S.W.3d 117, 119 (Mo.App. W.D.2005).

At trial, Respondent testified regarding debt owed by the parties to American Express.³ Specifically, she testified that Appellant incurred debt to American Express in her name in the amount of $45,000.00.⁴ Respondent stated that she did not authorize Appellant to incur this debt, nor was she aware of it at the time.

The trial court's Judgment Entry makes no mention of the American Express debt.

The Missouri Supreme Court has held that, "`[i]f [] undistributed property is discovered before the time for appeal has run, the appellate court, when presented with an appeal raising the issue of undistributed property, must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not rendered a final judgment from which an appeal can be taken.'" Meltzer v. Meltzer, 775 S.W.2d 120, 120-21 (Mo. banc 1989) (emphasis added; citation omitted). Following Meltzer, we have dismissed multiple appeals where the dissolution decree left marital property undistributed. See, e.g., McCord v. McCord, 75 S.W.3d 854, 855-57 (Mo. App. W.D.2002); Crawford v. Crawford, 31 S.W.3d 451, 453 (Mo.App. W.D.2000); Spauldin v. Spauldin, 945 S.W.2d 665, 668 (Mo.App. W.D.1997).

Although we previously held that the trial court's failure to apportion debts did not affect the finality of a dissolution judgment or this Court's jurisdiction on appeal, Fiorani v. Fiorani, 720 S.W.2d 438, 444 (Mo.App. W.D.1986), the legislature amended § 452.330.1 in 1998 to expressly require the circuit court to apportion marital debt — like marital property — as part of its dissolution decree. Since the 1998 amendments, courts have held that the principles governing the apportionment of marital debt are similar to those governing the division of marital property, and that the trial court is subject to the same mandatory, statute-based obligation to distribute marital debt as it is to distribute marital property. In re Marriage of Elliott, 179 S.W.3d 323, 326 (Mo.App. S.D.2005) ("Section 452.330.1 requires that `marital debts be divided along the same principles as marital property is divided.'" (citation omitted)).

Given the post-1998 parity between the treatment of marital property and marital debts in a dissolution proceeding, Meltzer's jurisdictional analysis is equally applicable to a trial court's failure to expressly distribute marital debt. Thus, Michel v. Michel, 94 S.W.3d 485 (Mo.App. S.D.2003) (en banc), explained:

Until § 452.330.1 was amended in 1998, trial courts were not statutorily obligated to allocate marital debts because debts incurred during marriage were not marital property. However, the 1998 amendment to the statute requires a trial court to divide "the marital property and marital debts." § 452.330.1 (emphasis supplied).

. . . .

The 1998 amendment to § 452.330.1 is a clear, unmistakable expression of the legislative intent to make the division of marital debts an issue in a dissolution case much like it had previously made the division of marital property an issue in such litigation. . . .

. . . [G]iving the language of § 452.330.1 its plain and ordinary meaning, we are persuaded the legislature intended to make the division of marital property and marital debt equal issues without distinguishing between the two.

Id. at 488-89 (citations omitted). Given that marital debts are now subject to distribution to the same degree as marital property, Michel held that Meltzer requires dismissal of an appeal where marital debts known to the trial court are not addressed in its decree. Id. at 489.

Following the 1998 amendments to § 452.330.1, we have followed Michel and dismissed appeals where the trial court's dissolution judgment failed to expressly address marital debts of which evidence was presented prior to expiry of the time for appeal. Gilstrap v. Gilstrap, 238 S.W.3d 196, 198 (Mo.App. W.D.2007); Rife v. Rife, 207 S.W.3d 199, 201 (Mo.App. W.D. 2006) (evidence of undistributed debt submitted to trial court in timely post-judgment motion); Jonusas v. Jonusas, 168 S.W.3d 117, 120 (Mo.App. W.D.2005) ("No findings were made related to any of the debts that were testified to at trial as having been incurred during the course of the marriage, either dividing those debts or declaring them to be nonmarital or nonexistent."). Other courts have done likewise. See, e.g., Hetherington v. Hetherington, 230 S.W.3d 21, 22-23 (Mo.App. E.D.2007); In re Marriage of Rhoads, 209 S.W.3d 24, 30-31 (Mo.App. S.D.2006).⁵

Respondent contends that the trial court's failure to expressly apportion the American Express debt is harmless, arguing that Appellant "incurred this debt . . . without Respondent's authority or knowledge," and that accordingly "this debt is Petitioner's separate debt and the trial court was not required to allocate this debt among the parties."

There are at least three fundamental problems with Respondent's argument, however. First, nothing in the Judgment Entry (or otherwise) indicates that the trial court credited her testimony that this debt was incurred without her knowledge or authorization.

Second, Respondent's mere testimony that Appellant incurred the debt unilaterally (but apparently in her name) would not of its own force render this debt non-marital. "`The phrase "marital debts" encompasses all debts incurred during the marriage, either jointly or separately.'" Dunnagan v. Dunnagan, 239 S.W.3d 181, 187 (Mo.App. S.D.2007) (citation omitted). "[M]arital debt is debt incurred subsequent to commencement of the marriage unless an exception applies." Rawlings v. Rawlings, 36 S.W.3d 795, 798 (Mo.App. W.D.2001); Ludwig v. Ludwig, 126 S.W.3d 466, 478 (Mo.App. W.D.2004). Moreover, "`[t]he fact that one spouse did not control or actively participate in the decision to incur a debt does not preclude its allocation to that spouse where it is determined to be marital debt.'" Travis v. Travis, 163 S.W.3d 43, 49 (Mo.App. W.D. 2005) (quoting Rawlings, 36 S.W.3d at 798). Because this American Express debt was incurred by the Rogers during their marriage, there is a rebuttable presumption that this debt was "marital debt." The trial court's Judgment Entry does not find that this presumption had been overcome and that the American Express debt is in fact Appellant's "separate debt" as Respondent contends.⁶

Finally, even if properly characterized as "non-marital," as we explained above the trial court's judgment was required to expressly set the American Express debt aside to Appellant as his non-marital debt.

Because of the trial court's failure to address the American Express debt in any fashion, despite the clear references to that post-marital debt both in the exhibits and trial testimony, its Judgment Entry is not final or appealable, and this appeal must be dismissed.

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