Workman v. Workman

Decision Date01 September 2009
Docket NumberNo. ED 92177.,ED 92177.
CourtMissouri Court of Appeals
PartiesBrenda WORKMAN, Respondent, v. Steven WORKMAN, Appellant.

Lisa Adams, Cordell & Cordell, P.C., St. Louis, MO, for Appellant.

Kimberly Tomko, Flynn & Davenport LLC, Troy, MO, for Respondent.

KURT S. ODENWALD, Presiding Judge.

Introduction

Steven Workman (Husband) appeals from the trial court's Findings, Conclusions and Judgment of Dissolution of Marriage (Judgment) awarding Brenda Workman (Wife) certain property, maintenance, child support, and attorney's fees. We affirm.

Background

Husband and Wife were married on May 21, 1988, in Lincoln County, Missouri. Three children were born of the marriage and were unemancipated at the time of the dissolution. The parties separated on March 26, 2007.

On May 4, 2007, Wife filed a Petition for Dissolution of Marriage (Petition). Wife's Petition requested that Wife be granted joint legal and sole physical custody of the children, that the court order a division of the marital property disproportionately in her favor "for [Husband's] substantial and heinous marital misconduct" or make a finding that the parties' Separation Agreement is not unconscionable, and that the court award her attorney's fees and maintenance.

Husband answered Wife's Petition and filed a cross-petition for dissolution of marriage on June 15, 2007. In his cross-petition, Husband requested the court award joint legal and physical custody of the children to both parties, award child support, divide the marital property disproportionately in his favor because his contributions were greater than that of Wife and he owned the marital home four years prior to the marriage, and order Wife to pay court costs. Wife answered Husband's cross-petition for dissolution on July 10, 2007.

In the meantime, Wife filed a motion for temporary child support, child custody, maintenance, attorney's fees, suit money, and costs on May 17, 2007. Husband answered Wife's motion and also filed a cross-motion for temporary custody.

On June 29, 2007, the court entered an order and judgment pendente lite. The court ordered that (1) Husband should pay $1000 per month to Wife for child support, (2) the parties' remaining tax return checks be deposited in the trust account of Flynn & Davenport, LLC (Trust Account) to pay a past due bill and one of the children's school tuition and fees, (3) the children continue to reside with Wife pending further review by the Guardian ad Litem and Husband refrain from "texting" or communicating with the children regarding the dissolution and attempts to contact Wife, and (4) the Trust Account also be used to pay the monthly mortgage and a previous outstanding judgment.1

A trial on the dissolution proceedings took place on May 9 and June 3, 2008. The trial court entered its Judgment on August 22, 2008. The trial court made the following findings and judgments regarding the parties and their property.

Separate Property

The trial court identified separate property of Wife, including a 1986 Dodge van and a 1999 Featherlite horse trailer, but found Husband had no identifiable separate property.

Marital Property

In its findings the trial court explained that Husband "is guilty of marital misconduct which, in the opinion of the Court, has imposed on [Wife] greater and additional burdens than are normally undertaken by a spouse in a marital relationship and which may be considered in apportioning the marital property and fixing the amount of maintenance payable to [Wife]."

Husband was awarded the following marital property: household furnishings, furniture, and miscellaneous personal property in Husband's possession; 1999 Ford pickup, 1998 Landa jon boat, 1998 boat trailer, 1990 outboard motor, 1973 Harley Davidson, 1979 Jeep, 1978 Landa boat, 1978 Jeep, and 1971 box trailer; funds in any accounts in Husband's individual name; amounts payable to him under the General Motors Corporation Personal Savings Plan (GM Savings Plan)2; and his 2007 tax return.

The trial court awarded Wife the following marital property: the marital home in Troy, Missouri (Marital Residence); household furnishings, furniture, and miscellaneous personal property in Wife's possession; all livestock, including three horses for the children; a 1992 Chevy truck, 1986 Dodge van, 1999 horse trailer, manure spreader, cub cadet, and tractor; funds in any accounts in Wife's individual name; and amounts payable to Wife under the American Funds and Pioneer accounts. The trial court also awarded Wife a percentage of any benefits payable to Husband under his General Motors Corporation Retirement Plan. In order to balance the property division, Husband was also ordered to pay Wife $52,000.

The trial court also ordered a number of items to be auctioned and the parties to split equally any money from the sale of the items.

Marital Debts

The trial court ordered Wife be held responsible for the remaining mortgage on the Marital Residence and the dept to Capital One. The debts to Sears, HSBC, and JC Penney were to be paid from the Trust Account.

Maintenance

The trial court found Husband was not in need of maintenance because he had sufficient property to provide for his reasonable needs and he earned an income sufficient to support himself.

As for Wife, the trial court found that due to the length of the marriage and Wife's age, health, lack of readily marketable skills, and lack of a four-year college degree, she was unable to support herself through appropriate employment and lacked sufficient property to provide for her reasonable needs. The trial court thus found it necessary to award Wife modifiable maintenance, which it ordered Husband to pay in the amount of $1200 per month.

Child Custody and Support

The trial court found that domestic violence and abuse had occurred and as such it was in the children's best interests to be in the custody of the nonabusive parent. The trial court thus awarded Wife sole legal and physical custody of the minor children with reasonable rights of visitation for Husband. Husband was also ordered to pay Wife $1132 per month in child support, pursuant to his proposed Form 14.3

The trial court also ordered Husband to continue the children on his health insurance through his employment and to pay 80% of any medical, dental, orthodontic, or other health-related expenses not covered by insurance. Wife was ordered to pay the remaining 20% of those costs. Husband and Wife were also ordered to split the costs of the children's educational and extraordinary expenses, 80% by Husband and 20% by Wife, including private school tuition, fees, uniforms, and book expenses. The same apportionment also applied to the payment of expenses incurred in connection with extracurricular activities and sports.

Attorney and Guardian ad Litem Fees

The trial court ordered the Guardian ad Litem fees be paid out of the Trust Account and ordered Husband to pay $9000 of Wife's more than $12,000 total attorney's fees, which was based on the parties' percentage of income.4

After the Judgment was entered, Husband filed a Motion for a New Trial on September 19, 2008. Husband alleged in his motion that the trial court's findings of fact and conclusions were not supported by the evidence and that the errors "should shock the conscience of the court," citing several perceived errors in the trial court's Judgment. Husband's motion was heard and argued on October 14, 2008. An Order was issued on October 29, 2008, concluding that "the evidence cited by [Husband's] counsel (who was not trial counsel) was not presented to the Court at trial in many instances and therefore the motion for new trial is denied."

Husband filed his timely Notice of Appeal on November 7, 2008. This appeal follows.

Points on Appeal

Husband presents four points on appeal. First, Husband alleges the trial court erred "in entering a judgment that is so unduly burdensome on [Husband] and so one sided as to shock one's sense of justice." Within his first point, Husband alleges three sub points in which the trial court erred in its Judgment: (1) awarding an excessive amount of marital assets to Wife, (2) awarding Wife attorney's fees, and (3) not considering the ability of Husband to meet his needs while meeting the requirement to pay maintenance.

In his second point, Husband asserts the trial court erred in finding that he had no identifiable separate property. Husband claims this finding is against the weight of the evidence and the trial court should have set aside for him a greater interest in the GM Savings Plan and the Marital Residence before distributing the marital property.

Husband alleges in his third point that the trial court abused its discretion in awarding attorneys fees to Wife when Wife was awarded nearly all of the "correctly determined" marital assets.

Finally, in his fourth point, Husband claims the trial court erred in denying his Motion for a New Trial. Husband asserts the trial court's reasoning in denying his Motion for a New Trial was flawed because Wife's deposition was in evidence at the trial, contrary to the trial court's finding in its denial of his motion.

Standard of Review

In a dissolution of marriage case, this Court will sustain the judgment of the trial court unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. In re Marriage of Maninger, 106 S.W.3d 4, 9 (Mo.App. E.D.2003). This Court will not retry the case, but instead, accept as true the evidence and reasonable inferences therefrom in the light most favorable to the trial court's judgment, and disregard all evidence and inferences to the contrary. Groenings v. Groenings, 277 S.W.3d 270, 274 (Mo.App. E.D.2009). We defer to the superior ability of the trial court to judge factors such as credibility, sincerity, character of the witnesses, and other...

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