525 S.W.3d 172
Mo. Ct. App.2017Background
- Marriage (1992) dissolved after long marriage with substantial marital assets and high marital standard of living; bench trial held Oct–Nov 2015. Husband owned multiple business interests (West County Volvo, Suntrup Ford Westport, Duke Reinsurance, Heart Dealer Financial) and received significant annual and pass-through income; Wife had not worked outside the home since 1998 and was imputed limited earning capacity.
- Trial court valued the marital estate at about $1.59M and ordered an unequal 60% (Wife) / 40% (Husband) division based largely on Husband’s marital and financial misconduct (substance abuse, affairs, and dissipation of marital funds in violation of Local Rule 68).
- As part of the division, Husband was awarded his business interests but ordered to make large cash equalization payments to Wife (including a second equalization payment to account for dissipated assets); Husband also ordered to pay $14,617/month in modifiable maintenance to Wife and other obligations (taxes, children’s expenses, etc.).
- Wife had used some marital funds ($11,000) and incurred credit-card debt; the court found Wife’s spending largely in line with the marital lifestyle and significantly less culpable than Husband’s dissipation.
- After judgment, Wife moved for $25,000 in appellate attorney’s fees; the trial court granted the request after an off-the-record hearing. Husband appealed, raising issues on equalization payment, maintenance (entitlement and amount), income imputation, and appellate attorney’s fees.
Issues
| Issue | Wife's Argument | Husband's Argument | Held |
|---|---|---|---|
| Second equalization payment for Local Rule 68 dissipation | Court should compensate Wife for Husband’s dissipation of marital funds | Payment was improper because Wife also spent during pendency and was not penalized equally | Affirmed: court properly awarded the second equalization payment (reduced for Wife’s $11k) and permissibly considered misconduct in unequal division |
| Whether Wife lacked sufficient property to warrant maintenance | Wife lacked sufficient property and income to meet reasonable needs despite asset award | Husband argued court only considered imputed wage income and failed to consider Wife’s apportioned marital property/investment income | Reversed in part: trial court erred by not considering how Wife’s marital property award affects her income; remanded to develop record and reconsider maintenance |
| Amount of maintenance (reasonable needs and Husband’s ability to pay) | Maintenance based on marital standard of living and detailed expense findings; Husband has ability to pay | Husband contended expenses unreasonable and award left him unable to support himself; challenged income calc and expense findings | Largely affirmed: court’s findings on Wife’s reasonable needs and Husband’s ability to pay supported by substantial evidence; Husband’s challenges to many orders not preserved or were insufficiently developed |
| Award of $25,000 appellate attorney’s fees to Wife | Needed fees; Husband has greater resources | Husband argued no evidence supported award and procedure was inadequate | Reversed: record inadequate (no evidence, off-the-record hearing, no findings); remand for proper consideration under §452.355.1 |
Key Cases Cited
- Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) (standard of appellate review in court-tried cases)
- Woodard v. Woodard, 201 S.W.3d 557 (Mo. App. E.D. 2006) (requirement to consider marital property when awarding maintenance)
- Lindsey v. Lindsey, 336 S.W.3d 487 (Mo. App. E.D. 2011) (misconduct is a factor in equitable property division)
- Schubert v. Schubert, 366 S.W.3d 55 (Mo. App. E.D. 2012) (maintenance: determine reasonable needs first)
- Valentine v. Valentine, 400 S.W.3d 14 (Mo. App. E.D. 2013) (threshold for maintenance: lacks sufficient property and unable to support self)
- Alabach v. Alabach, 485 S.W.3d 386 (Mo. App. E.D. 2016) (trial court must make an adequate record and findings when awarding appellate attorney’s fees)
- Layden v. Layden, 514 S.W.3d 667 (Mo. App. E.D. 2017) (insufficient record for appellate-fee award; remand required)