Yonker v. Yonker

• Decision Date: 04 March 2014
• Docket Number: No. SD 32564.,SD 32564.
• Court: Missouri Court of Appeals
• Parties: In re the MARRIAGE OF Scott D. YONKER, and Valerie K. Yonker, Scott Damian Yonker, Petitioner–Respondent, v. Valerie Kay Yonker, n/k/a Valerie Kay Boyce, Respondent–Appellant.

423 S.W.3d 848

In re the MARRIAGE OF Scott D. YONKER, and Valerie K. Yonker,Scott Damian Yonker, Petitioner–Respondent,

v.Valerie Kay Yonker, n/k/a Valerie Kay Boyce, Respondent–Appellant.

No. SD 32564.

Missouri Court of Appeals,

Southern District,

Division Two.

March 4, 2014.

Randy J. Reichard, Attorney for Appellant, Springfield, MO.

J. Matthew Miller, Attorney for Respondent, Springfield, MO.

DON E. BURRELL, J., Opinion Author.

Valerie Kay Yonker (now Boyce) (“Ex–Wife”) appeals the judgment of contempt and subsequent order of commitment entered after she failed to pay her ex-husband, Scott Damian Yonker (“Ex–Husband”), $250,000.00 as required by the parties' dissolution judgment.

Ex–Wife's first point claims the trial court's contempt finding “was an abuse of discretion, against the weight of the evidence and not supported by substantial evidence in that [Ex–Wife] did not have the financial ability to pay said debt to [Ex–Husband.]” Her second point challenges the trial court's order of commitment (ordering Ex–Wife's incarceration) on the grounds that it “was an abuse of discretion, not supported by substantial evidence and was against the weight of the evidence and misapplied or misdeclared [sic] law” because Ex–Wife lacked “the present ability to pay $200,000 or $250,000 to [Ex–Husband] either at the time of trial, the entry of the judgment of contempt or the order of commitment, or on May 1, 2013[.]”

Finding merit only in Ex–Wife's second point, we affirm the contempt judgment but reverse and vacate the order of commitment and remand the matter for further proceedings on the propriety of Ex–Wife's incarceration because no substantial evidence of Wife's present ability to purge herself of contempt was before the trial court at the time it entered its January 2013 commitment order.

Applicable Principles of Review and Governing Law

“A trial court's judgment in a civil contempt proceeding must be affirmed unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence,[ ¹] or it erroneously applies or declares the law.” Stuart v. Ford, 292 S.W.3d 508, 514 (Mo.App. S.D.2009). The ruling will not be disturbed “absent a clear abuse of discretion.” Id. at 513.

Judicial discretion is abused when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Anglim v. Missouri Pac. R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992).

The parties disagree about the proper measure of deference this court owes the trial court on its resolution of disputed facts. Although Ex–Wife admits that we must defer to the trial court on all matters involving the credibility of witnesses, she claims that we do not owe the same deference when it comes to “documentary evidence[,]” citing South Side Plumbing Co. v. Tigges, 525 S.W.2d 583, 589–90 (Mo.App. St.L.D.1975),² and Earls v. Majestic Pointe, Ltd., 949 S.W.2d 239, 246 n. 9 (Mo.App. S.D.1997). Based on these cases, Ex–Wife—who relied heavily on certaindocumentary evidence she presented to the trial court—claims that our review of such evidence is de novo.

The Earls court was “mindful that the trial court can believe all, part, or none of the testimony of any witness.” 949 S.W.2d at 246. In a footnote to that statement, it added, “While this Court gives deference to the trial court's credibility determinations on witnesses, the documentary evidence in this case is not subject to the deference rule[,]” id. at n. 9, citing Hinkle v. Emmons, 826 S.W.2d 359, 361 (Mo.App. E.D.1992). Hinkle makes a similar statement: “Most of the evidence in this case was documentary and is not subject to the deference rule.” Id.

It is important to note that each of the aforementioned opinions predate our supreme court's statement in Business Men's Assur. Co. of Am. v. Graham, 984 S.W.2d 501, 506 (Mo. banc 1999), that “this Court defers to the trial court as the finder of fact in determinations as to whether there is substantial evidence to support the judgment and whether that judgment is against the weight of the evidence, even where those facts are derived from pleadings, stipulations, exhibits and depositions.” ³ Appellant's argument is also inconsistent with our high court's more recent, watershed opinion of White v. Director of Revenue, 321 S.W.3d 298 (Mo. banc 2010), which held that

[w]hen the burden of proof is placed on a party for a claim that is denied, the trier of fact has the right to believe or disbelieve that party's uncontradicted or uncontroverted evidence. Bakelite Co. v. Miller, 372 S.W.2d 867, 871 (Mo.1963). If the trier of fact does not believe the evidence of the party bearing the burden, it properly can find for the other party.

Id. at 305.

As a result, we must reject Ex–Wife's position and persist in our more recently expressed standard: “When determining sufficiency of evidence pursuant to the Murphy v. Carron standard, appellate courts accept as true the evidence and inferences favorable to the trial court's judgment, disregarding all contrary evidence.” Jarrell v. Director of Revenue, 41 S.W.3d 42, 46 (Mo.App. S.D.2001) (emphasis added). Our following summary of the relevant facts is in accord with that standard.

Facts and Procedural Background

The Dissolution Judgment

The parties were divorced on February 3, 2009 after reaching “a settlement as to all issues.” Ex–Wife was represented by counsel at the dissolution hearing and during the subsequent contempt proceedings. The dissolution judgment approved the “Marital Settlement and Separation Agreement” (“marital agreement”), and it divided the parties' property “as set forth on Exhibits A–F attached to the [marital agreement].” Exhibit B (“[Ex–Husband]'s Share of Marital Property”) and Exhibit E (“[Ex–Wife]'s Debts”) together provided that Ex–Wife would make two cash payments to Ex–Husband. One cash payment, in the amount of $300,000, was to be made when the trial court signed the dissolution judgment (“the first payment”), and it was made as ordered. “An additional cash payment from [Ex–Wife] in the sum of $250,000 [was to be made] within two (2) years of” the dissolution judgment and there was “a promissory note by [Ex–Wife] in favor of [Ex–Husband] acknowledging that such obligation shall bear interest at the rate of 6% per year.” Ex–Husband filed “ PETITIONER'S MOTION FOR CONTEMPT” on January 9, 2012. On January 13, 2012, the trial court set a show-cause hearing for April 20, 2012.

Ex–Wife admitted in her “answer” to Ex–Husband's motion “that she ha[d] not paid the additional cash payment in the amount of $250,000 [ (“the second payment”) ] and that two years ha[d] elapsed since the entry of the [dissolution judgment].” Ex–Wife also maintained in her answer that “she [wa]s financially unable to fully comply with the [dissolution judgment].” At the beginning of the show-cause hearing in April 2012, the trial court took “judicial notice of all its files” related to the parties' dissolution.

The Contempt Hearing

Ex–Husband testified that he agreed to allow Ex–Wife to make two equalization payments under the dissolution decree because most of their assets were “in real estate” and there was a loan against some apartments that Ex–Wife wanted to keep. Ex–Husband testified that he “had to wait until they [sic] got another loan for that money to be released so [he] could get the rest of [his] money.”

Ex–Wife made the first payment to Ex–Husband by paying $240,000 from one bank account, leaving her with approximately $135,000 in that bank, and paying $60,000 from a second account, leaving her approximately $65,000–$70,000 in that bank. Ex–Wife also had $114,800 at a third bank and $18,000 in currency. Thus, Ex–Wife had at least $632,800 in cash at the time of the dissolution. Her initial $300,000 payment to Ex–Husband then left her with approximately $332,800 in cash.

Ex–Wife eventually used the remaining money from the first bank to pay down a loan on vacant land held by one of Ex–Wife's business interests, the nature of which will be discussed, infra. As for the money in the second bank, Ex–Wife testified that she spent $59,000 of it shortly after the divorce to make a down payment on a house with 14 acres of land. She testified that she spent the remainder on living expenses. Ex–Wife testified that she also spent the money in the third bank after March 2010 on “monthly bills[.]”

In addition to cash, Ex–Wife received the couple's 25% interest in Kensington Park Apartments, LLC (“Kensington Park Apartments”). Ex–Wife's two brothers owned the remaining interest, split at 25% and 50%. The value of Ex–Wife's equity in Kensington Park Apartments was valued by the parties at the time of the divorce at $650,000.

Ex–Wife admitted that her tax returns showed that Kensington Park Apartments had distributed approximately $104,000 to her in 2009. Ex–Wife testified that by March 2010, Kensington Park Apartments had split into two companies, Kensington Park Apartment Homes, LLC ⁴ (“KensingtonPark Apartment Homes”) which owned “the apartment complex” and Kensington Park Investments, LLC (“Kensington Park Investments”) which “owns the vacant land next to the apartments[.]” The ownership percentages between Ex–Wife and her brothers remained the same when the new companies were created. At the time of the divorce, $67,200 was held as collateral by Ex–Wife's first bank for a loan on the vacant land. A new loan was obtained for the land now held by Kensington Park Investments after the divorce, and Ex–Wife pledged $140,502.76 in one of her bank accounts as security for the loan. Ex–Wife then paid the amount that she pledged toward this loan while her brothers, collectively, made a...