Lisa M. Rallo v. Pete S. Rallo
2015 Mo. App. LEXIS 589
| Mo. Ct. App. | 2015Background
- Wife and Husband married in 2006; during the marriage Husband adopted Wife’s son and they had a daughter.
- In Dec. 2011 Wife moved with the children to her grandparents’ home in St. Charles County and filed for dissolution there in Jan. 2012. Husband lived in the City of St. Louis during the marriage.
- Trial occurred in April 2014; court awarded joint legal custody (Wife has final decision-making if parties cannot agree), sole physical custody to Wife, and limited visitation to Husband.
- Court imputed minimum-wage income to Husband based on work history and concluded he had not used best efforts to find employment.
- Court divided limited marital property (including Husband’s Schnucks pension; excluded the 2011 tax refund as already spent) and awarded Wife $10,000 in attorney fees but ordered Husband to pay $5,000.
Issues
| Issue | Wife’s Argument | Husband’s Argument | Held |
|---|---|---|---|
| Venue (proper county for filing) | Wife resided (domiciled) in St. Charles County when she filed | Venue improper; case should be dismissed or transferred to City of St. Louis | Venue proper in St. Charles; Wife established domicile in St. Charles County when filing; transfer argument undeveloped and denied. |
| Custody (legal & physical) | Joint legal custody appropriate; Wife to be primary physical custodian as primary caretaker | Sole custody to Husband or different arrangement; Wife made unilateral decisions and therefore should not have final say | Affirmed: joint legal custody with Wife final decision-maker if irreconcilable; Wife sole physical custodian—findings supported by substantial evidence. |
| 2011 Tax Refund (marital asset) | Exclude refund because Wife spent it for living expenses after separation | Refund was marital property and should have been included in property division or penalize Wife for squandering it | Trial court properly excluded the non-existent refund; Husband failed to prove secreted/squandered; no reimbursement ordered. |
| Schnucks Pension (pre-marriage accrual) | Pension wholly or largely marital and divisible | Portion accrued before marriage and is non-marital; Husband offered pension summary showing pre-marriage credits | Affirmed: Husband failed to prove by clear and convincing evidence which portion predated marriage; entire pension treated as marital for division. |
| Overall property division equity | Division unjust because refund excluded and pension included in full | Division was equitable given record and burdens of proof | Affirmed: no abuse of discretion in division. |
| Imputation of income | Husband not intentionally avoiding work; medical condition prevents employment | Court may impute income because Husband failed to use best efforts and relied on disability process | Affirmed: court permissibly imputed minimum wage given testimony and lack of medical proof; not an abuse of discretion. |
| Attorney fees | Wife entitled to reasonable fees under §452.355.1; sought $10,000 | Challenged as procedurally barred and excessive; argued unusual-circumstances rule required | Affirmed: court considered statutory factors and awarded $5,000 to Wife; rejected requirement of showing "unusual circumstances." |
Key Cases Cited
- Byars v. Byars, 593 S.W.2d 656 (Mo. App. 1980) ("resides" equated with domicile for venue in dissolution cases)
- Lindo-Higginbotham v. Higginbotham, 9 S.W.3d 620 (Mo. App. 1999) (resident/domicile analysis under dissolution statutes)
- Goeman v. Goeman, 833 S.W.2d 476 (Mo. App. 1992) (short physical presence immaterial when intent to remain is proven)
- Thorp v. Thorp, 390 S.W.3d 871 (Mo. App. 2013) (standard of review and deference for custody determinations)
- Loomis v. Loomis, 158 S.W.3d 787 (Mo. App. 2005) (court cannot divide an asset that no longer exists unless secreted/squandered in anticipation of divorce)
- Farnsworth v. Farnsworth, 108 S.W.3d 834 (Mo. App. 2003) (burden shifting when spouse alleges secreted or squandered marital asset)
- Kelly v. Kelly, 340 S.W.3d 673 (Mo. App. 2011) (spouse bears burden by clear and convincing evidence to prove pre-marital portion of retirement benefits)
- Hoffman v. Hoffman, 423 S.W.3d 869 (Mo. App. 2014) (imputation of income is discretionary; purpose is to prevent evasion of support responsibilities)
- Goins v. Goins, 406 S.W.3d 886 (Mo. banc 2013) (trial court has broad discretion and is presumed expert in awarding attorney fees under §452.355.1)