Stroh v. Stroh

• Decision Date: 31 December 2014
• Docket Number: No. SD 33052,SD 33052
• Citation: 454 S.W.3d 351
• Parties: Charles Henry Stroh, Petitioner–Appellant, v. Kelly Ann Stroh, Respondent–Respondent.
• Court: Missouri Court of Appeals

454 S.W.3d 351

Charles Henry Stroh, Petitioner–Appellant

v.Kelly Ann Stroh, Respondent–Respondent.

No. SD 33052

Missouri Court of Appeals, Southern District, Division Two .

Filed: Dec. 31, 2014

DANIEL E. LESLIE, Union, MO, for Appellant.

MATHEW G. EILERTS III, Clayton, MO, for Respondent.

Opinion

DON E. BURRELL, J.

Charles Henry Stroh (“Husband”) appeals portions of the October 2013 judgment that dissolved his marriage to Kelly Ann Stroh (“Wife”). Husband challenges the trial court's orders concerning maintenance, property division, child support, and attorney fees. Only Husband's claim that the trial court erred as a matter of law in calculating the presumed child support amount has merit. We therefore reverse the judgment as to child support. In all other respects the judgment is affirmed, and the trial court is directed to enter an amended judgment that awards child support in an amount it considers just and appropriate after first calculating the presumed child support amount by using the correct monthly figures for Husband's gross income and the maintenance awarded to Wife.

Applicable Principles of Review

“[T]he trial court's decision in a court-tried case is presumed correct, and the appellant has the burden of showing error.” McAllister v. McAllister, 101 S.W.3d 287, 291 (Mo.App.E.D.2003). We must affirm the judgment in a dissolution case “if there is substantial evidence to support it, it is not against the weight of the evidence, and it neither erroneously declares nor erroneously applies the law.” In re Marriage of Hillis, 313 S.W.3d 643, 644 (Mo. banc 2010). We “defer to the factfinder's determinations of credibility, viewing the evidence and permissible inferences therefrom in the light most favorable to the decree, disregarding all contrary evidence and inferences.” Mehra v. Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). “A trial court is free to believe or disbelieve all, part, or none of the testimony of any witness.” Short v. Short, 356 S.W.3d 235, 240 (Mo.App.E.D.2011). “When no express finding of fact is made on an issue, we consider the issue to have been resolved in accordance with the result.” In re Marriage of Holden, 81 S.W.3d 217, 226–27 (Mo.App.S.D.2002). While the classification of property as either “marital or non-marital is a question of law we review de novo [,]” Short, 356 S.W.3d at 243, we defer to the trial court's determination of the facts that underlie such a classification. See Glenn v. Glenn, 345 S.W.3d 320, 326 (Mo.App.S.D.2011) (trial court has discretion to determine witness credibility for purposes of classifying property as marital and non-marital).

Facts and Procedural Background

The case was tried in a single day in May 2013, and the parties were the only witnesses. Each party also offered numerous exhibits. Based upon the index of exhibits included in the transcript, and references to exhibits made during trial, the admitted exhibits appear to have included bank documents, investment account documents, rental property records, tax returns, life insurance documents, Wife's “Amended Statement of Income and Expenses,” Wife's “amended statement of property[,]” and a list of the hours worked by Wife's counsel. Despite the prominent role that some of the admitted exhibits presumably played in influencing the trial court's decisions, Husband has neither deposited nor filed them with this court. “Rule 81.12(e) specifically mandates that ‘[a]ppellant is responsible for depositing all exhibits that are necessary for the determination of any point relied on.’ Where the record on appeal contains evidentiary omissions, we presume they support the trial court's decision.” Angel v. Angel, 356 S.W.3d 357, 360 n.2 (Mo.App.W.D.2011).¹

We now turn to the testimonial evidence as viewed in the light most favorable to the judgment. At the time of trial, Husband was 72 years old, and Wife was 45 years old. The parties began living together in 1989, when Husband was 48 years old and Wife was 20 years old. By sometime in 1991, Wife had divorced her former spouse. Two children were born to Husband and Wife, a daughter in 1996, and a son in 1999. Husband divorced his former spouse in 1998, and the parties eventually married on June 10, 2006.

The parties separated in February 2011, and Husband filed his petition for dissolution three months later. In June 2011, Wife filed a counter-petition that sought, among other things, retroactive maintenance.

Husband had “been buying and selling real estate in St. Louis” for “[o]ver forty years.” None of the properties Husband had purchased were encumbered by a mortgage, and Husband received rental income from “a number of them.” Husband and Wife filed separate tax returns after they married, and Husband acknowledged that his tax returns did not “report everything” he made. Husband admitted that he sometimes kept cash that was paid in rent and did not deposit it into a bank account. Husband also received “close to a thousand” dollars per month from Social Security. Husband received an additional $1,040 per month from Social Security in the form of a benefit for the children.

From 1989 until their separation in 2011, Husband supported Wife financially, and he told her that he would take care of her financial needs. Wife had no post-high school education. Wife did “the majority of the cooking and cleaning and laundry of the house[hold.]” Wife took care of the children after they were born, and Husband told her that he wanted her to stay at home to care for them. It was also difficult for Wife to keep a regular job or attend college because the family went “to Florida three months out of every year right after Christmas[.]” Wife assisted Husband with his real estate business by finding properties to purchase, placing advertisements and listings on properties, taking deeds to the applicable courthouses for filing, moving money between accounts, helping Husband clean properties, doing bookkeeping, and typing various documents.

In 2006 (after the children were both in school), Wife started a silk screening business. That business closed after the parties separated and Husband stopped helping the business financially during slow months. Wife tried to revive the business in 2013, but “[i]t was just too difficult to do on [her] own.” She had earned about $1,000 from silk-screening work in 2013 by the time of trial. Wife also started a business that involved selling and delivering trout and produce in St. Louis. Her net income from this business varied from $600 to about $1,000 per month. After looking at the numbers from the year before trial, Wife was not sure that this business could succeed.

Wife testified that her monthly living expenses were $5,627, which reflected a lesser lifestyle than she had enjoyed while living with Husband. Wife could not meet her financial needs without assistance, she was behind on some payments, she had relied on “friends and family” for loans, she was receiving “food stamps[,]” and she had sold some vehicles for a total of $5,100 to pay bills after Husband stopped helping her financially. In February 2013, Wife and the children were living in the family home, but Wife could not afford to purchase propane to heat the house. Electric service to the house “was scheduled to be shut off, [and she] was [also] out of firewood.” Wife believed that if she left the house, Husband “would have the electric on and the kids would be warm.” Wife moved out, and Husband moved back in. The children remained in the home, and Husband made sure that the house was heated.

Husband testified that there were two separate accounts at a single financial institution (“Investment Account 1” and “Investment Account 2,” collectively “Investment Accounts”) that were in the name of both Husband and Wife as joint tenants with right of survivorship. Husband testified that Exhibit 3 showed a balance in Investment Account 1 of $162,143.36 in “February [.]” He stated that Exhibit 4 showed a balance in Investment Account 2 of $28,987.58, but he did not specify a date for that balance.

A bank account held in the name of a trust created for Husband (“Bank Account 1”) held income Husband received “from real estate and [S]ocial [S]ecurity.” Another account at a different bank (“Bank Account 2”) was in Husband's name, and it included insurance proceeds from a fire at one of the rental properties. We will refer collectively to these two accounts as “Bank Accounts.” Wife's name had been on both accounts at one time, and Husband agreed that both had been used to pay marital expenses. Wife acknowledged that she did not directly contribute any money to Bank Accounts. Husband agreed that Exhibit 1 reflected a statement from November 2012 for Bank Account 1, and he stated that Exhibit 2 was his most recent bank statement for Bank Account 2.

Husband obtained two life insurance policies on his life that had accrued cash surrender values (“Life Policies”). One policy was taken out in 1997; the second policy was issued in 1975. Husband also had a life insurance policy on Wife's life, but he had surrendered that policy in 2012 in exchange for $5,500. Husband paid “the premiums for these life insurance policies from the joint account” both “[b]efore and after the marriage[.]” Husband acknowledged that he “suffered from memory loss issues[.]” He also stated, “I'm pretty truthful, but I've been known to lie.”

Wife had paid $5,600 toward her legal expenses, and she still owed $32,990 to her attorney through the end of trial. Wife requested a retroactive award of maintenance of $3,000 per month, and she asked that Husband be ordered to pay the remaining balance of her attorney fees.

The dissolution judgment was entered in October 2013. It incorporated, among other exhibits, a “Form 14” (“Exhibit 2”), a spreadsheet entitled “DISTRIBUTION OF MARITAL AND NON–MARITAL PROPERTY” (“Exhibit 3”), and a handwritten list of jewelry (“Exhibit 6”). The trial court found “some portions of” each party's “testimony to not...