Sullivan v. Sullivan

• Decision Date: 12 April 2005
• Docket Number: No. WD 63620.,WD 63620.
• Citation: 159 S.W.3d 529
• Parties: Cynthia Lee SULLIVAN, Respondent, v. Alan Richard SULLIVAN, Appellant.
• Court: Missouri Court of Appeals

159 S.W.3d 529

Cynthia Lee SULLIVAN, Respondent, v. Alan Richard SULLIVAN, Appellant.

No. WD 63620.

Missouri Court of Appeals, Western District.

April 12, 2005.

Kellie Renee Bertels, Jefferson City, MO, for Respondent.

Alan Richard Sullivan, Jefferson City, MO, Pro Se.

Before EDWIN H. SMITH, C.J., SPINDEN and SMART, JJ.

EDWIN H. SMITH, Chief Judge.

Alan Sullivan appeals, pro se, the judgment of the Circuit Court of Cole County dissolving his marriage to the respondent, Cynthia Sullivan, with respect to its orders: (1) dividing the parties' marital property; (2) awarding the respondent attorney's fees; and (3) declaring that in any subsequent action to enforce or clarify the dissolution judgment, the prevailing party would be entitled to recover attorney's fees and costs.

The appellant raises nine points on appeal. In Points I-VII, he claims that the trial court erred in dividing the parties' marital property. In Point VIII, he claims that the trial court erred in awarding the respondent attorney's fees of $3,733.75. In Point IX, he claims that the trial court erred in ordering that, in any subsequent action to enforce or clarify the judgment, the prevailing party would be entitled to recover attorney's fees and costs.

We affirm in part, and dismiss in part.

Facts

The parties were married on August 13, 1994, in Montrose, Missouri, and separated on October 10, 2001. No children were born of the marriage.

On July 8, 2002, the respondent filed a petition for dissolution of marriage in the Circuit Court of Cole County. The appellant filed his answer and cross-petition on December 3, 2002.

On July 21, 2003, the respondent's petition and the appellant's cross-petition were taken up and heard. Both parties testified on their own behalf, with no other witnesses being called. The appellant sought both maintenance and a disproportionate division of the marital property, alleging that the respondent's economic circumstances were superior to his, his contribution to the acquisition of the marital property was significantly greater, and the respondent had engaged in marital misconduct.

The respondent testified that for the first seven years of the marriage she was in school, eventually earning a medical degree in May 2001, and that her income was expended on her education or for marital expenses. She further testified that, in obtaining her medical degree, she incurred approximately $130,000 in debt, and that she was currently working as a resident at Capital Region Medical Center, in Jefferson City, Missouri, earning a gross monthly salary of approximately $3,100. In addition, she testified that, during the course of the marriage, she, along with her stepfather and brother, had prevailed in a suit for damages for the wrongful death of her mother, receiving a judgment of approximately $1,400,000, but that this judgment was being appealed. She also admitted that she informed the appellant on May 20, 2002, while he was on active duty in Washington D.C., that the only way she would even consider staying in the marriage was if he returned home before August 13, 2002, and that before the appellant returned home on July 15, 2002, she began having an affair with a co-worker, causing her to file her petition for dissolution of marriage.

The appellant testified that he worked as a trooper for the Missouri Highway Patrol during the marriage, except for October 11, 2001 — July 15, 2002, when he was on active duty in the military, stationed in Washington D.C. He further testified that, although he would have preferred to stay in the military due to the increase in income, he applied for and received a family hardship discharge, as requested by the respondent, but that upon his return, she had already filed a petition for dissolution and was unwilling to even meet with him. In addition, he testified that the majority of the marital expenses were paid from his income, and that he received a $20,000 workers' compensation settlement during the marriage, which he also contributed to the acquisition of marital property. Finally, he testified that his current gross monthly salary with the Missouri Highway Patrol was approximately $3,400.

On November 3, 2003, the appellant filed a "MOTION TO COMPEL THE PETITIONER TO PRODUCE SETTLEMENT AND/OR JUDGMENT DOCUMENTS," requesting that the court order the respondent to produce further evidence concerning her wrongful death judgment. At that point, the appellant was acting pro se in that he had fired his trial counsel. The motion was taken up and heard on that same date. On November 12, 2003, the trial court denied the appellant's motion and entered its judgment dissolving the parties' marriage.

In the trial court's judgment, the only property set aside to either party as non-marital was the respondent's medical degree, along with the debt incurred in obtaining it, and the proceeds from her wrongful death award, should there be any. In dividing the marital property, which consisted of the respondent's state-sponsored retirement accounts, several IRA's and numerous stocks, the court found that the appellant was entitled to a disproportionate property division, as he sought. The appellant was awarded his retirement accounts, one IRA and numerous stocks, as well as all of the marital debt, for a net marital property award of $66,971.71. The respondent was awarded two IRA's and several stocks, for a net marital property award of $37,933.30. In addition, the court denied the appellant's request for maintenance and awarded the respondent half of her attorney's fees, $3,733.75.

On November 24, 2003, the appellant filed a "MOTION TO AMEND THE JUDGMENT OR IN THE ALTERNATIVE MOTION FOR A NEW HEARING/TRIAL," requesting that "a new hearing be held so that the Marital and Non-Marital property may be divided fairly." On December 15, 2003, the trial court denied the motion.

This appeal followed.

I.

In Point I, the appellant claims that the trial court erred in dividing the parties' marital property, based on its valuation of his retirement accounts, because the purported evidence relied on by the court in making its valuation was not properly admitted at trial and the record is otherwise insufficient to support the court's valuation. Specifically, he claims that the trial court's valuation of his retirement accounts was based solely on documents not properly admitted at trial, such that it was based on incompetent evidence.

A reviewing court must defer to the trial court's marital property division unless it is improper under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), or is an abuse of discretion. Conrad v. Conrad, 76 S.W.3d 305, 314 (Mo.App.2002). Appellate courts presume the division of property was correctly decided, and the party challenging the division bears the burden of overcoming that presumption. Id.

Section 452.330,¹ which governs the division of property in a dissolution proceeding, sets forth a two-step process that is to be followed by the trial court: (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. Bauer v. Bauer, 38 S.W.3d 449, 458 (Mo.App.2001). The division of marital property need not be equal, but must be fair and equitable given the circumstances of the case. Shepard v. Shepard, 47 S.W.3d 412, 417 (Mo.App.2001). Section 452.330.1 provides, in pertinent part, that in fashioning a fair and equitable division of marital property, the trial court is required to consider all relevant factors, including:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children (2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;

(3) The value of the nonmarital property set apart to each spouse;

(4) The conduct of the parties during the marriage; and

(5) Custodial arrangements for minor children.

The five statutory factors of § 452.330.1 are not exclusive, and there is no formula determining the weight to be given to the factors in dividing the marital property. Taylor v. Taylor, 25 S.W.3d 634, 640 (Mo.App.2000).

Although the trial court is not expressly required to assign values to marital property, "evidence from which the value of the marital property can be determined must appear." Spauldin v. Spauldin, 945 S.W.2d 665, 669 (Mo.App.1997). Thus, a trial court is "prohibited from entering a valuation of marital property not supported by the evidence at trial, but [it], nevertheless, enjoys broad discretion in valuing marital property." Farley v. Farley, 51 S.W.3d 159, 164 (Mo.App.2001). The parties bear an equal burden to present evidence as to the value of marital property. Wright v. Wright, 1 S.W.3d 52, 57 (Mo.App.1999).

This case was tried on July 21, 2003. At trial, neither party introduced any evidence concerning the value of the appellant's retirement accounts, a Missouri Department of Transportation Retirement Account and a PEBSCO Deferred Compensation Account. On November 3, 2003, the appellant filed a "MOTION TO COMPEL THE PETITIONER TO PRODUCE SETTLEMENT AND/OR JUDGMENT DOCUMENTS," which was taken up and heard on that same date. On November 7, 2003, the respondent filed several documents valuing the appellant's retirement accounts. On November 12, 2003, the trial court denied the appellant's motion of November 3, 2003, and entered its dissolution decree, which, inter alia, divided the parties' marital property. Included among the marital property were the appellant's retirement accounts, which were valued in accordance with the documents filed by the respondent on November 7, 2003.

The appellant does not challenge the fact that the information...