Thorp v. Thorp

• Decision Date: 15 January 2013
• Docket Number: No. ED 97995.,ED 97995.
• Citation: 390 S.W.3d 871
• Parties: Jon THORP, Appellant, v. Alisha THORP, Respondent.
• Court: Missouri Court of Appeals

390 S.W.3d 871

Jon THORP, Appellant,

v.Alisha THORP, Respondent.

No. ED 97995.

Missouri Court of Appeals,

Eastern District,

Division Three.

Jan. 15, 2013.

Susan K. Roach, W. Edwin Roussin, Clayton, MO, for appellant.

Karen Pittman–Pace, St. Louis, MO, for respondent.

ROY L. RICHTER, Judge.

Jon Thorp (“Father”) appeals from the trial court's judgment of November 8, 2011, dissolving his marriage with Alisha Thorp (“Mother”) and entering a child custody and support award for their minor child (“Minor”). The trial court's judgment granted joint physical custody to the parties, with Mother as the residential parent, and ordered Father to pay child support to Mother. We dismiss the portion of the appeal from the trial court's judgment setting aside the default judgment and affirm the judgment of dissolution.

I. BACKGROUND

The parties married on May 30, 2006. Prior to their marriage, on December 2, 2004, a son was born, both parties agreeing that they are the parents of Minor. From the outset of the marriage, marital strife and disagreements were commonplace.In April 2008, the parties separated for the final time.

On July 18, 2008, Father filed a petition for dissolution of marriage in the circuit court of Saint Louis County. Mother, believing that the trial court would enter an order granting joint legal and physical custody of Minor, as agreed to by the parties, failed to respond to the Petition. The trial court entered a default judgment on March 4, 2009, incorporating Father's proposed parenting plan which provided that the parties would serve as joint legal custodians, but that Father serve as the sole physical custodian and residential parent of Minor. Regardless of the March 4, 2009 default judgment, the parties continued to exercise custody on a week-to-week basis, as they had done since their April 2008 separation. This week-to-week custody arrangement continued until Father enrolled Minor in preschool near his residence ¹ and informed Mother that he was enforcing the March 2009 default judgment. Thereafter, on November 10, 2009, Mother filed her motion to set aside the default judgment. The trial court granted Mother's motion on February 1, 2010, and litigation commenced regarding the dissolution of marriage and custody of Minor.

In the interim time period between the March 4, 2009 default judgment and the February 1, 2010 motion to set aside the default judgment, Father began new employment as a firefighter with the Mehlville Fire Department on September 21, 2009.

Over the course of the next two years, and several separate days of trial, litigation continued. The trial court entered its written Judgment on November 8, 2011. In entering its Judgment, the trial court incorporated the guardian ad litem's parenting plan, granting joint legal and physical custody to the parties, and ordering Mother as the residential parent. Further, the trial court rejected both parents' Form 14s and completed its own. The trial court's Form 14 calculated Father's gross income as $5,580 per month, including the average monthly salary ($799.00) Father received from his secondary employment with Missouri–1 DMAT. The presumed child support amount (Line 12) calculated Father's child support amount to be paid to Mother every month at $761. However, the trial court adjusted the presumed child support amount, adding $64 per month, for a total of $825 per month, on the basis that Father was afforded the yearly dependent tax exemption. This appeal follows.

II. DISCUSSION

Father raises eight points on appeal. In his first point, Father alleges the trial court erred in setting aside the March 4, 2009 default judgment, in that Mother failed to demonstrate good cause or a meritorious defense.

Second, Father claims the trial court erred in finding that Father's 457 deferred benefit plan with his employer Mehlville Fire Department was marital property, because Father asserts that the deferred benefit plan was acquired after a decree of legal separation, and, thus, should be classified as separate property. Therefore, Father argues that the trial court should not have awarded Mother 50% of the 457 deferred benefit plan.

In points III, IV and V, Father asserts the trial court erred in granting the parties joint physical custody, in ordering Mother as the residential parent, and accepting the guardian ad litem's parenting plan, respectively. In all three points, Fatherargues the judgment is against the weight of the evidence and not in the best interests of Minor, because the evidence establishes that Father should have been granted sole physical custody, been ordered as the residential parent, and the trial court should have adopted the Father's parenting plan (requesting sole physical custody and ordering Father as the residential parent).

In his sixth point, Father contends the trial court erred on its Form 14 calculation by including in Father's monthly gross income $799 Father received, on average, from his secondary-employment. Father argues the inclusion of said income was against the weight of the evidence because the income was inconsistent and analogous to a bonus.

Seventh, Father alleges the trial court abused its discretion in awarding Mother attorney's fees as it, too, was against the weight of the evidence, in that there were no unusual circumstances established to justify the award of attorney's fees.

Last, Father contends that the trial court's deviation and increase of child support payments from the presumed child support amount calculated on the Form 14, was an abuse of discretion and against the directions of Form 14, because the trial court should not have accounted for Father's ability to claim the dependent tax exemption.

Point I—Default Judgment

To begin, Father alleges the trial court erred in setting aside the March 4, 2009 default judgment because Mother failed to establish good cause or a meritorious defense. We dismiss Point I for lack of jurisdiction.

A notice of appeal must be filed not later than ten days after the judgment or order appealed from becomes final. SeeRule 81.04(a). The timely filing of a notice of appeal is a jurisdictional requirement. Popular Leasing USA, Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875, 877 (Mo.App. E.D.2001). Thus, if a notice of appeal is untimely, an appellate court lacks jurisdiction and must dismiss. Id.

“A motion [to set aside a default judgment] filed under this Rule 74.05(d) ... is an independent action....” SeeRule 74.05(d). Accordingly, a judgment granting or denying a motion to set aside a default judgment is a final judgment eligible for immediate appellate review. Gordon ex rel. Martin v. City of St. Louis, 186 S.W.3d 395, 397 (Mo.App. E.D.2006). Therefore, Father was required to file his appeal challenging the trial court's setting aside the default judgment not later than ten days after the judgment became final. Id.

Here, the trial court set aside the default judgment on February 1, 2010. This judgment became final thirty days after its entry since no authorized after-trial motions were filed. See Rule 81.05(a)(1). As such, Father had until Monday, March 15, 2010, to file his appeal challenging the trial court's setting aside of the default judgment. However, Father did not file his appeal until January 27, 2012.

Accordingly, finding that Father's notice of appeal was untimely with respect to Point I, pursuant to Rule 81.04, this Court is without jurisdiction and must dismiss Point I.

Point II—Retirement Account

Next, Father asserts that his 457 deferred benefit plan (“retirement plan”) with his employer, Mehlville Fire Department, is property acquired after a default judgment. Specifically, Father claims that his retirement plan began on the first day of his employment with Mehlville Fire Department (September 21, 2009) which was, more than five months after the default judgment was entered (March 4, 2009), dissolving the parties' marriage. Therefore, Father argues that this retirement plan should be considered separate, not marital property, and that the trial court erred in awarding Mother 50% of said retirement plan.

Standard of Review

Generally, “[t]he standard of review for appellate action in a dissolution of marriage is that we will affirm the trial court's judgment of dissolution unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” Richmond v. Richmond, 164 S.W.3d 176, 178 (Mo.App. E.D.2005).

“A trial court possesses broad discretion in identifying marital property.” Absher v. Absher, 841 S.W.2d 293, 294 (Mo.App. E.D.1992). Under Missouri law, property acquired by either spouse during the marriage is presumed marital property, but this presumption may be overcome by a showing that the property is non-marital. See Sections 452.330.2, 452.330.3. “[T]he burden is on the spouse who claims that the property is separate to overcome the presumption of marital property and show that it falls into one of the exceptions listed” in Section 452.330.2 Kahn v. Kahn, 839 S.W.2d 327, 332–33 (Mo.App. E.D.1992) (quoting True v. True, 762 S.W.2d 489, 492 (Mo.App. W.D.1988)). The complaining party must prove that the property is separate property by clear and convincing evidence. Comninellis v. Comninellis, 99 S.W.3d 502, 507 (Mo.App. W.D.2003). However, even if the trial court erred in classifying property, “[i]t is well settled that the mere erroneous declaration of what is or is not marital property, where the decree is nonetheless fair, will not require a reversal.” Burk v. Burk, 936 S.W.2d 144, 145 (Mo.App. S.D.1996) (quoting in part In re Marriage of Garrett, 654 S.W.2d 313, 316 (Mo.App. S.D.1983) (internal quotations omitted)). The exceptions enumerated in Section 452.330.2 are:

(1) Property acquired by gift, bequest, devise, or descent;

(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property by gift,...