Taylor v. Taylor

• Decision Date: 15 February 2000
• Citation: 12 S.W.3d 340
• Court: Missouri Court of Appeals
• Parties: (Mo.App. W.D. 2000) . Ross H. Taylor, Appellant, v. Karen S. Taylor, Respondent. WD56272 & 56322 Missouri Court of Appeals Western District Handdown Date: 0

12 S.W.3d 340 (Mo.App. W.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Ross H. Taylor, Appellant, v. Karen S. Taylor, Respondent.

WD56272 & 56322

Missouri Court of Appeals Western District

Handdown Date: 02/15/2000

Appeal From: Circuit Court of Platte County, Hon. Owens L. Hull, Jr.

Counsel for Appellant: Bruce Rene Anderson

Counsel for Respondent: James Franklin Ralls, Jr.

Opinion Summary:

The husband appeals the trial court's judgment and decree of marriage dissolution, alleging the trial court erred in classifying more than four-ninths of his 401k plan as marital property, and awarding one-half of that marital portion to the wife. The wife cross-appeals, asserting the trial court erred in failing to award her spousal maintenance and attorney's fees.

AFFIRMED.

Division One holds:

(1) The trial court did not err in designating part of the husband's 401k plan as marital property. Generally, any property acquired by a spouse prior to marriage is that spouse's separate property on dissolution. However, the husband failed to produce any evidence regarding the method by which he made contributions to the plan or the exact amounts he contributed to the plan prior to or during marriage. With no evidence detailing the specific amounts that the husband contributed prior to marriage, the court was not required to classify any portion of the plan as non-marital.

(2) The trial court did not err in denying the wife's request for maintenance. The trial court may award maintenance only if it finds the spouse seeking maintenance lacks sufficient property to provide for his or her needs and is unable to meet his or her reasonable needs through appropriate employment. Here, the wife estimated her and the children's monthly expenses ranged from $4,399 to $3,700. She estimated her income and child support ranged up to $3,934. On these facts, the trial court did not abuse its discretion in determining that the wife's income is sufficient.

(3) The trial court did not err in denying the wife attorney's fees. Attorney's fees are authorized in dissolution cases after consideration of all relevant factors, including the financial resources of both parties. Here, the fact the husband's income exceeds the wife's income was only one factor for the court to consider. Other facts showed that the husband had various financial obligations, including child support, and that the wife was awarded liquid marital assets and was able to support herself through employment. Moreover, the court could have also considered the conduct of the wife during the marriage, specifically, her extra-marital affair, as well as the wife's conduct during the litigation, in that she missed the first scheduled hearing.

Opinion Author: Laura Denvir Stith, Presiding Judge

Opinion Vote: AFFIRMED. Howard and Newton, J.J., concur.

Opinion:

Ross Taylor (Husband) appeals the trial court's judgment and decree of dissolution of his marriage to Karen Taylor (Wife). Husband alleges the trial court erred in (1) classifying more than four-ninths of his 401k plan as marital property, and (2) awarding one-half of that marital portion of his 401k plan to Wife. Wife cross-appeals, asserting the trial court erred in (1) failing to award spousal maintenance to Wife, and (2) failing to award attorney's fees to Wife. Finding no error in any of the respects alleged, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Karen Taylor and Ross Taylor were married on June 9, 1982. At the time of the marriage, Husband was employed as an airline pilot and Wife worked for the same airline as a ticketing agent. Shortly after their marriage, Husband and Wife had their first child and Wife quit her job in order to stay at home and care for the child. A second child was born in 1986.

In 1995, Wife began working for a staffing service, which placed her in temporary accounting or payroll positions at different companies. In 1996, Wife took a full-time position with one of the companies at which she had previously worked on a temporary basis. Later in 1996, Wife became involved in an extramarital affair with her employer at that company. Husband discovered Wife's affair and requested that they attend marital counseling in order to save the marriage. Despite counseling, Wife remained involved in the extra-marital affair. On April 14, 1997, Husband filed a petition for dissolution of marriage.

On April 16, 1998, the dissolution action was heard before the trial court. At trial, Husband presented evidence concerning the designation of certain property as marital or non-marital, as well as concerning his desire to continue a relationship with his children through visitation. Wife did not attend the hearing except through counsel. The court adjourned the hearing until May 11, 1998, in order to give Wife the opportunity to present her evidence. At the continued hearing, Wife explained she was absent from the April 16 hearing because she had wrongly believed that the hearing was continued. More specifically, Wife explained that she discovered that a vacation she planned to Las Vegas, Nevada with her daughter coincided with the hearing scheduled for April 16, 1998. She contacted her attorney's office and spoke with a secretary about rescheduling the hearing. When wife did not hear from anyone, she incorrectly assumed that the date for the hearing had been changed. Thus, Wife went on her vacation, missing the hearing. Wife also testified about her financial position, especially focusing on her and the children's monthly expenses.

After hearing Wife's evidence, the court entered a judgment dissolving the Taylors' marriage. The court awarded both Husband and Wife joint legal custody of the two children, and awarded primary physical custody of the children to Wife, subject to Husband's reasonable visitation. Husband was ordered to pay $1,431 each month for child support, and was to be responsible for the payment of any uninsured or deductible amounts relating to health care, dental care and hospitalization of the children. The court also divided the marital property and debts and ordered the sale of the marital residence, but denied Wife's request for maintenance and attorney's fees.

Wife filed a motion to amend the judgment, requesting that the court: (1) make a more equal division of the marital property and debt; (2) direct Husband to pay his child support arrearage in full; (3) correct the value of the 401k plan; (4) change the classification of certain property from non-marital to marital; (5) grant Wife maintenance; and (6) award Wife attorney's fees. The court entered an amended judgment of dissolution on August 14, 1998. In its amended judgment, the court entered new findings of fact relating to Husband's payment of the child support arrearage and the valuation of the 401k plan, but did not amend its denial of Wife's request for maintenance or attorney's fees.

Husband appeals and Wife cross-appeals.

II. STANDARD OF REVIEW

On appeal of a dissolution of marriage proceeding, we review the evidence in the light most favorable to the trial court's decision. Replogle v. Replogle, 903 S.W.2d 551, 553 (Mo. App. 1995). We will affirm the trial court's decree unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the decision erroneously declares or misapplies the law. Crews v. Crews, 949 S.W.2d 659, 663 (Mo. App. 1997). The party challenging the dissolution decree has the burden of demonstrating error. Id.

The trial court has wide discretion in determining whether a maintenance award is appropriate. Ellis v. Ellis, 970 S.W.2d 416, 417 (Mo. App. 1998). We defer to the trial court's findings even if the evidence could support a different conclusion because the trial court is in a better position to judge witness credibility, sincerity, character and other intangibles not revealed in a transcript. Id. The trial court's decision regarding maintenance will not be reversed absent an abuse of discretion. Id. Likewise, the trial court's division of property will be disturbed on appeal only if it is so "heavily and unduly weighted in favor of one party as to amount to an abuse of discretion." Crews, 949 S.W.2d at 663. The trial court's decision in awarding attorney's fees will be reversed only upon a finding of abuse of discretion. Halupa v. Halupa, 943 S.W.2d 272, 278 (Mo. App. 1997).

III. DISTRIBUTION OF 401k PLAN EARNINGS

Husband asserts the trial court erred in designating $97,000 of his 401k plan as marital property without setting aside both the contributions made prior to marriage, and the interest earned on those funds, as his separate property.

Generally, any property acquired by a spouse prior to marriage is that spouse's separate property upon dissolution of marriage, and any property acquired during the marriage is marital property subject to division upon dissolution of marriage. Sec. 452.330.2 RSMo Cum. Supp. 1996. See In re Marriage of Medlock, 990 S.W.2d 186, 188 (Mo. App. 1999). Because the acquisition of some types of property may be an on-going process, beginning prior to marriage and continuing through the marriage, where the character of the property is contested, the "source of funds" rule determines the character of the property as marital or separate. Hoffmann v. Hoffmann, 676 S.W.2d 817, 824 (Mo. banc 1984). Under the source of funds rule, the character of property is determined by the source of funds used to finance the purchase of the property and the property is considered to be acquired as it is paid for. Id.; In re Marriage of Medlock, 990 S.W.2d 186, 188 (Mo. App. 1999). If there is an increase in the value of property which is part marital and part non-marital, the spouse contributing the non-marital funds and the spouse contributing the marital funds each receive a proportionate and fair return on their investment. Meservey v....