Introduction
Alberta D. Neal (Wife) appeals from the trial court’s Amended Judgment of Dissolution of Marriage (Amended Judgment), inter alia, awarding Troy R. Neal (Husband) and Wife with joint legal custody of the parties’ minor child, ordering Husband to pay monthly child support, and dividing the parties’ property and debts. We affirm in part and reverse in part, remanding this case to the trial court with instructions.
Background
Husband and Wife were married on May 6, 1995. One child, C.N. (Daughter) was born of the marriage on July 22, 1995. The parties separated in September 2004. Husband filed his Petition for Dissolution (Petition) on May 15, 2006. Thereafter, Wife filed her Answer to Petition for Dissolution for Marriage and Counter-Petition for Dissolution of Marriage (Answer and Counter-Petition) on June 13, 2006. The trial court conducted a hearing on May 7, 2007, concerning the Petition, at which the following evidence pertinent to the issues on appeal was adduced.
At the time of the hearing, Daughter was 11 years old. Since Husband and Wife separated, they alternated physical custody of Daughter on a weekly basis. The parties agreed to continue that basic schedule, as well as joint legal custody. Husband proposed that the exchange take place at 6:30 a.m. on Mondays, which would allow for Daughter to spend an entire Monday holiday with the parent in custody. He also testified that a Sunday evening exchange interrupted their Sunday evening church services. Wife testified that she preferred a Sunday evening exchange because “the evening works better for dropping [Daughter] off and picking her up” and because there were problems in the past with Monday exchanges.
Wife has another child, R.N., not of the marriage. The child lives with Wife, but Wife receives no child support for him and Wife pays all of R.N.’s expenses.
Husband is employed at Boeing as an engineer. Husband testified that his income for the year prior to trial was set forth on his Exhibit 8, his 2006 W-2, totaling $88,016.07. Exhibit 8 lists varying amounts for Husband’s income, including Medicare wages of $97,633.55, Social Security wages of $94,200, and wages, tips, and other compensation of $82,633.55. Wife testified that Husband’s salary was approximately $95,000 per year or more.
Husband testified that he traveled for business approximately six times in 2005, and then approximately nine times in 2006 when he was promoted to a manager. Husband testified that he could always schedule his future travel to coincide with times he would not have custody of Daughter, and that a right of first refusal was acceptable if he needed to travel during his custody. Wife also agreed to a right of first refusal. Wife requested that no “make-up time” be allowed after traveling because it disrupted her family plans.
Wife had been employed at Reuters America in the payroll department, with a 2005 income of $58,038.59. Wife quit her job at Reuters on April 28, 2006, because she was being asked to engage in frequent travel, including a request that she spend six weeks in India. Wife stated on the record that neither she nor Husband had family in town to watch Daughter on short notice. Wife testified that after she quit her job at Reuters, she cashed out $6,251.54 from her 401(k) in June 2006, for
Husband testified that he borrowed against his Boeing Voluntary Investment Plan, a 401(k) plan, to pay credit card debt that he carried in his name alone. He borrowed in 2002, 2005, and 2006, totaling $21,675.25. Husband testified that he borrowed $15,000 or $16,000 in 2006, following the separation. Husband further testified that he paid about $10,000 to credit cards and the rest went to things like bowling, clothes for Daughter, and eating out. Husband testified that he paid off the first loans from 2002, and that two loans remain outstanding. Wife testified that the parties incurred no joint debts after the separation in 2004, and therefore requested that Husband’s 401(k) account be divided equally without her being charged with Husband’s loans.
Husband testified that during the separation, he paid for 100% of Daughter’s child care expenses, all of her clothing, school expenses, food expenses, field trips, extracurricular activities, sporting events, ham appointments, and her cell phone. Husband was unaware of any clothing that Wife had purchased for Daughter, except flip-flops and a pair of tennis shoes. Wife testified that she provided food and clothing for Daughter, and she paid for Daughter’s bowling, cooking classes, slumber parties, and movie theater tickets. Wife testified that she received no child support from Husband since the separation.
Husband inherited almost $90,000 from his deceased step-mother in 1994, before he was married to Wife. Husband testified that he received a retirement account of $15,266 as part of the inheritance, and that he transferred those funds into a Roth IRA in 2000, still in his name only. Husband introduced into evidence Exhibit 17, which included a death certificate, tax return, probate documents from the attorney handling his step-mother’s estate, and a letter from the attorney stating that Husband received the Fortis First Trust IRA paid to him as a death beneficiary totaling $15,266. Exhibit 17 also included documents of an account statement for a Roth IRA listed in Husband’s name only with Fidelity Investments, showing a transfer-in by check in the amount of $11,341.73 in May, 2000. Husband testified that the funds deposited into the Roth IRA account in 2000 were the same funds received from his inheritance, and which were transferred from Fortis, to Stifel Nicolaus, and then to Fidelity Investments. Husband testified that his Roth IRA account with Fidelity has continued, and that some portion of the account is now with his Roth IRA account at American Funds. Wife testified that Husband inherited some money from his step-mother, but Wife believed the $11,341.73 deposited into Husband’s Roth IRA in 2000 came from the parties’ savings.
Husband testified that he possessed Boeing Stock Options, valued at about $8000. Those options were not vested.
Following trial, and pursuant to the trial court’s order, each party submitted his or her proposed findings of fact and conclusions of law. The trial court entered its Judgment of Dissolution, Division of Property and Debts, and Parenting Plan (Judgment) on June 13, 2007.
Wife filed a Motion for Rehearing on June 27, 2007. In her motion, Wife raised several issues, including her allegations that the trial court failed to properly consider the issues presented in the dissolu
On August 15, 2007, the trial court heard both parties’ argument on Wife’s Motion for Rehearing, granting part of Wife’s requests but denying other parts. The trial court then entered an Amended Judgment of Dissolution of Marriage (Amended Judgment) on August 30, 2007, inter alia, calculating child support via Form 14 utilizing Husband’s testimony as to his income, awarding Wife child support effective May 1, 2007, finding that $15,000 of Husband’s Roth IRA was separate property from his inheritance, and charging Wife with the funds withdrawn from her retirement account to support herself after she quit her job at Reuters.
This appeal follows.
Points on Appeal
Wife raises five points on appeal. In her first point, Wife claims the trial court erred when it adopted Husband’s Proposed Judgment virtually verbatim. Wife argues that the inconsistencies contained in the judgment show that the trial court failed to appropriately consider the evidence before it when it chose to adopt Husband’s proposal for its judgment.
In her second point, Wife argues the trial court misapplied the law, entered a decision against the weight of the evidence and unsupported by the evidence, and abused its discretion with its Form 14 calculation. Wife alleges that the income amounts on the court’s Form 14 are not supported by the evidence and do not reflect the funds that the party has available to support his or her child because the trial court used an income figure for Husband based solely on Husband’s post-tax income, rather than Husband’s entire income, and also used two different income figures for Wife in the judgment and on the Form 14. Wife claims that the erroneous income figures result in an incorrect Form 14 calculation.
In Wife’s fourth point, she argues that the trial court abused its discretion when it failed to award Wife retroactive child support because Wife earned less than Husband following the separation and provided significant support for the child.
In her fifth and final point, Wife claims the trial court’s decision to set aside $15,000 from Husband’s IRA as his separate property was against the weight of the evidence. Wife argues that property acquired during the marriage is presumed marital unless proven to be separate by clear and convincing evidence, and that Husband failed to trace the funds in his Roth IRA to his 1994 inheritance. Wife further argues that Husband opened the Roth IRA with Fidelity with only $11,000 instead of $15,000, and that the presumption that Husband’s current Roth IRA is marital property should have controlled.
Standard of Review
We review a non-jury case under Rule 73.01(c). The trial court’s judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law.
Murphy v. Carrón,
Discussion
I. Verbatim Adoption of Proposed Findings and Judgment, While Strongly Disfavored, is Not Reversible Error.
Wife’s first point is premised primarily on her allegation that the trial court adopted Husband’s Proposed Judgment “virtually verbatim” as its own when issuing its Judgment. Wife argues the “verbatim adoption” of Husband’s proposal, along with inconsistencies found in the judgment, demonstrate the trial court’s failure to appropriately consider the evidence before adopting Husband’s proposal.
The verbatim adoption of a proposed judgment or order has been routinely criticized by Missouri courts.
Nolte v. Wittmaier,
As compelling as Appellant’s argument may be, we are unable to engage in the scope of review requested because the necessary pleadings are not before us. Although Wife claims that the trial court adopted “virtually verbatim” Husband’s proposed judgment, she fails to include in the legal file a copy of Husband’s proposed judgment upon which her first point on appeal is grounded. In her brief, Wife suggests the trial court appeared to “white out” the words “Petitioner’s Proposed” on Husband’s proposed judgment, and then entered that document as its own Judgment. While Wife’s assertion may indeed be correct, we are left to speculate as to the trial court’s actions because we have not been provided with any document that is labeled “Petitioner’s Proposed Judgment of Dissolution of Marriage.” We are then left to assume facts about the content of Husband’s proposed judgment, as well as the trial court’s actions upon receipt of said proposed judgment. That we will not do.
In his brief, Husband does not acknowledge that the trial court adopted its proposed judgment “virtually verbatim,” but states that the judgment of the trial court substantially adopted the proposed order submitted by Husband. It is with this background that we will consider the issues raised by Wife in her first point.
We will not engage in a comparison of individual provisions contained within the Husband’s proposed judgment and the trial court’s Judgment, as we have nothing to provide a basis for comparison. However, despite the alleged similarities between Husband’s proposed judgment and the trial court’s Judgment, the record before us shows that Wife filed a Motion for Rehearing expressing her concerns in this regard. The trial court granted Wife a hearing on her motion, reconsidered the issues before it, and ruled favorably for Wife on some of the issues raised by her. The trial court then entered an Amended Judgment in the case. The record contains substantial evidence to support the Amended Judgment, and we cannot find that the Amended Judgment is against the weight of the evidence. Wife argues that the reasons set forth in the Amended Judgment for certain provisions contained therein demonstrate a lack of consideration of the evidence presented to the trial court. We disagree.
Both Wife and Husband submitted proposed parenting plans to the trial court. Their separate parenting plans contained some similar provisions and some differing provisions. The trial court was left to decide certain details of a joint custody plan upon which the parents were unable to agree. In its discretion, the trial court ordered a plan allowing for a Monday morning exchange of Daughter instead of Wife’s preference for a Sunday evening exchange. Citing its preference for a Monday morning exchange of Daughter does not evidence the trial court’s lack of consideration for Wife’s preference. The record is void of any indication that the trial court’s actions on this issue reflect anything other than what the trial court
Wife also claims that the trial court’s provision for alternating major holidays provides for alternating custody of Daughter on only Thanksgiving, Christmas, and during spring break, and fails to address additional holidays such as President’s Day, Independence Day, Martin Luther King weekend, Memorial Day, Labor Day, and Halloween. While Wife’s proposed plan to add certain holidays to this provision is not unreasonable, we do not find, under our scope of review as directed by
Murphy v. Carron,
Wife argues that the initial parenting plan failed to contain the standard language of St. Louis County parenting plans that requires a party to inform the other party of the itinerary and contact information when traveling with the child outside of the St. Louis Metropolitan area. This requirement was the subject of much testimony at trial, and was important to Wife. The fact that the trial court included such language in the Amended Judgment is an indication that the trial court gave due consideration to Wife’s request and the evidence related thereto.
Wife further attacks the Amended Judgment with her argument that the trial court’s adoption of Husband’s Form 14 using an income of $58,032 per year for Wife is internally inconsistent with the trial court’s judgment finding Wife’s income to be $57,000 per year. We disagree. The trial court’s findings stated that “Wife is employed making $57,000 per year and has a work history of making income greater than that amount. She voluntarily left her job at Reuters America where she earned $58,000 in 2005.” The trial court may impute employment income to a party seeking maintenance “according to what he or she could earn by use of his or her best efforts to gain employment suitable to his or her capabilities.”
Breihan v. Breihan,
Finally, Wife argues that the trial court’s Amended Judgment orders the payment of child support without a wage withholding order, and fails to state any reason for the omission of a wage withholding order. Wife asserts that this failure indicates a lack of independent, thoughtful consideration to the issues by the trial court, and requires reversal. Section 452.350.2, RSMo 2000 1 states:
For all orders entered or modified in IV-D cases, and effective January 1, 1994, for every order for child support or maintenance entered or modified by the court pursuant to the authority of this chapter, or otherwise, income withholding pursuant to this section shall be initiated on the effective date of the order, except that such withholding shall not commence with the effective date of the order in any case where:
(1) One of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding. For purposes of this subdivision, any finding that there is good cause not to require immediate withholding must be based on, at least, a written determination and an explanation by the court that implementing immediate wage withholding would not be in the best interests of the child and proof of timely payments of previously ordered support in cases involving the modification of support orders; or (2) A written agreement is reached between the parties that provides for an alternative arrangement.
Although an immediate income withholding is not required under Section 452.350.2, a party must demonstrate good cause to be exempt from the immediate income withholding, and the trial court must make a written finding that implementing immediate wage withholding is not in the child’s best interests in order to be exempt from the statutory requirement.
Carter v. Carter,
Point denied.
II. Trial Court Made No Income Error on Form 14.
In her second point on appeal, Wife argues that the trial court’s Form 14 is not supported by the evidence. Wife claims that the trial court erred when it used Husband’s post-tax income rather than Husband’s entire income on its Form 14, and by using a different income figure for Wife in the Amended Judgment than the income figure for Wife set forth in the trial court’s Form 14. Wife argues that these erroneous income figures result in an incorrect Form 14 calculation, and therefore, any judgment based on the Form 14 calculation was not supported by substantial evidence.
See Glimcher,
In making child support determinations, the trial court is required to determine the presumed correct child support amount pursuant to Rule 88.01 and Form 14.
Woolridge v. Woolridge,
Pre-tax income may be included as income on a Form 14.
Fulton v. Adams,
Here, the trial court adopted the Form 14 submitted by Husband as part of its Amended Judgment, and found Husband’s income to be $88,016 per year pursuant to Husband’s testimony and Husband’s 2006 W-2 admitted into evidence as Exhibit 8. Wife argues that Husband’s 2006 W-2 showed his Medicare income to be $97,633.55. Wife testified that Husband’s income had been about $95,000 per year or more, and asserts that these income figures should have been used by the trial court for Husband’s income instead of $88,016. Wife’s income calculation for Husband is dependent upon Husband’s bonus and other discretionary benefits that exceeded Husband’s salary. No evidence exists on the record demonstrating that the “other benefits and bonus” amount included in Husband’s $97,633 income for 2006 will continue in the future. Husband argues that his income as determined by the trial court included his pre-tax income, although said calculation excluded such bonus items as the “Share Value Program,” “Employee Incentive Plan,” “Pride at Boeing-Tax Assist,” and “Pride at Boeing Award.” While it was within the trial court’s discretion to consider a higher amount for Husband’s wages as evidenced by Husband’s W-2 and by Wife’s testimony, the trial court also acted within its discretion to consider only Husband’s gross income for 2006, without including unpredictable bonuses or other incentive payments. A trial court has discretion to disregard income history, and instead look to a single year’s income figure if the court finds that figure to be the most accurate predictor of a parent’s income.
Samples v. Kouts,
Moreover, as we discussed in Wife’s first point, we find sufficient evidence to support the trial court’s decision to impute income to Wife and use $58,032 per year as Wife’s income on the Form 14.
Point denied.
III. Wife’s Retirement Account Treated Unduly Unfavorable to Wife.
In her third point on appeal, Wife argues that the trial court’s division of marital property is not fair and equitable because the trial court charged Wife with funds that she withdrew from her retirement account post-separation while, at the same time, the trial court did not charge Husband with the funds he withdrew from his investment account post-separation. Wife argues that both she and Husband withdrew funds from marital accounts to support themselves following their separation, and that the trial court abused its discretion in holding Wife accountable for the funds she withdrew. We agree.
A trial court “is vested with great flexibility in its division of marital property,” and its division “need not be equal but must be fair and equitable given the circumstances of the case.”
Dowell v. Dowell,
The evidence gleaned from the record shows that Wife was unemployed for a period of time longer than she anticipated after she quit her job at Reuters. Wife quit her job because she was unable to balance the increased travel demands of her job with her parental responsibilities. There is no evidence to suggest that Wife dissipated the funds from her 401(k) for any reasons other than to support herself and her children during this period of unemployment. Wife argues that she should not be charged with cashing out her 401(k) to obtain funds to support herself, and compares her situation to that of Husband, who also withdrew funds from his Voluntary Investment Plan to pay down debt and for post-separation living expenses. 2
The trial court is given broad discretion in determining whether to include funds that previously have been spent by one of the parties in its division of marital property.
Ray v. Ray,
In its Amended Judgment, the trial court treated Wife’s 401(k) plan in the amount of $6,251.54 as marital property that was equally divided between the parties. Likewise, the trial court equally divided by Qualified Domestic Relations Order Husband’s Boeing Company Voluntary Investment Plan as of the date of the dissolution judgment. This ruling was consistent with the trial court’s Amended Judgment, which divided all of the parties’ investment accounts, 401 (k) accounts, IRAs, pension plans and stock option equally between Husband and Wife. We are not to substitute our judgment for the trial court, which has the function of balancing the equities of the parties.
Slattery v. Slattery,
Point granted.
IY. Trial Court Committed No Error Not Awarding Retroactive Child Support.
In her fourth point, Wife argues that the trial court erred in failing to award her retroactive child support because Wife earned less than Husband following the separation and provided significant support for the child. Wife claims that the trial court abused its discretion in failing to award retroactive child support because she pleaded a request for retroactive child support in her Counter-Petition that was supported by evidence of both parties’ support for Daughter during the separation and Husband’s significantly higher income. Because Wife’s argument is unsupported by the record, we cannot find in her favor.
A trial court has discretion to order retroactive child support dating back to the filing of the petition for dissolution. Section 452.340.1. “It is the trial court’s function to balance the equities in determining if a party is entitled to retroactive child support, and this Court will not substitute its judgment for that of the trial court.”
Slattery,
The record reveals testimony from Husband that during the separation, he paid for 100% of Daughter’s child care expenses, all of her clothing, school expenses, food expenses, field trips, extracurricular activities, sporting events, hair appointments, and her cell phone. Wife testified that she provided food and clothing for Daughter, and she paid for Daughter’s bowling, cooking classes, slumber parties, and movie theater tickets. Wife testified that she received no child support from Husband since the separation. The trial court made a finding that the testimony of both parties was credible, such that “Husband paid for the majority of the child’s expenses during the time the case was pending.” Moreover, Wife did not at any time during the pendency of the case file a motion for temporary support. The trial court acknowledged that the parties equally divided their time with Daughter by alternating weeks. In light of these facts, we find that the trial court did not abuse its discretion in delaying child support one year following Husband’s May 15, 2006 filing of his Petition for dissolution. Moreover, the trial court’s Amended Judgment awarded child support effective May 1, 2007, which was retroactive from the August 30, 2007 date the Amended Judgment was entered, as well as the June 13, 2007 date on which the original judgment was entered. Accordingly, we find that the trial court did enter retroactive child support to Wife, and committed no error in not ordering the child support payments to be retroactive beyond May 1, 2007.
Point denied.
In her fifth and final point, Wife claims the trial court erred when it set aside $15,000 from Husband’s Roth IRA with American Funds as his separate property. The trial court made a finding that $15,000 of Husband’s current Roth IRA came from Husband’s inheritance, and is Husband’s separate property. Wife argues a lack of sufficient evidence to trace the funds used by Husband to open his Roth IRA account in 2000 to his 1994 inheritance, and claims that Husband opened the Roth IRA account in 2000 with funds from their joint savings.
Generally, when a spouse acquires property prior to a marriage and retains separate title to it after marriage, that property is deemed separate upon dissolution of the marriage.
Vinson v. Vinson,
“For evidence to be clear and convincing, it must instantly tilt the scales in the affirmative when weighed against the evidence in opposition and the fact finder’s mind is left with an abiding conviction that the evidence is true.”
In re Marriage of A.S.A.,
The trial court may be clearly convinced of the affirmative of a proposition even though it has contrary evidence before it.
In re Marriage of A.S.A.,
Husband and Wife were married in 1995. Husband testified that he received a Fortis First Trust IRA paid to him in the amount of $15,266 as the death beneficiary upon the death of his step-mother in May 1994. Husband produced Exhibit 17, which included a death certificate, tax return, and probate documents from the attorney handling his step-mother’s estate, and a letter from the attorney stating that Husband received the Fortis First Trust IRA paid to him as a death beneficiary totaling $15,266. Also included as part of Exhibit 17 were statements from a Roth IRA account held in Husband’s name only with Fidelity Investments. One Fidelity statement showed transfer into the Roth IRA by check in the amount $11,341.73 on May 15, 2000. Husband testified that the funds deposited into the Roth IRA account in 2000 were in fact the same funds received from the inheritance, transferred from Fortis, to Stifel Nicolaus, and then to Fidelity Investments. Husband further testified that the account with Fidelity has
While we acknowledge our duty to review the facts in the light most favorable to the trial court’s judgment, we are not persuaded by the evidence before us that Husband has overcome by clear and convincing evidence the presumption that his current Roth IRA account with American Funds, which was established by Husband during the marriage, was marital property.
The trial court found in its Amended Judgment that “Husband presented evidence to show he had an inheritance of $15,000 from his step-mother that he used to establish an IRA account, and the Court finds that the $15,000 portion of the IRA is Husband’s separate property.” From this finding, the trial court excluded $15,000 as Husband’s separate property from Husband’s current Roth IRA with American Funds, having a present value of $29,930.84, and divided the remaining marital portion of $14,930.84 equally between Husband and Wife. While there is evidence to support a finding that Husband received approximately $15,000 in 1994 as a portion of his inheritance, the record lacks substantial evidence allowing the trial court to conclude that Husband’s current Roth IRA with American Funds consists of funds from Husband’s inheritance. The trial court’s finding is not supported by either Husband’s testimony or the exhibits received into evidence. Given the Husband’s elevated burden of overcoming the marital presumption by clear and convincing evidence, we find the trial court erred in concluding that any portion of Husband’s Roth IRA with American Funds was separate non-marital property.
The evidence presented by Husband cannot meet the “clear and convincing” standard. Although the evidence before us clearly establishes that Husband inherited funds from his step-mother prior to the marriage, evidence in the record as to what happened to the inheritance is sparse, and does not support the trial court’s finding. First, Husband testified that $11,341.73 of the inherited funds was transferred into the Roth IRA Fidelity account. Because this was the only evidence to come before the trial court regarding the funds used to open the Fidelity Investment account, then at most, the trial court could have found that $11,341.73 of Husband’s current IRA was Husband’s separate non-marital property. 3 Furthermore, Husband testified that he has no knowledge of what happened to the funds he obtained through inheritance between the time he received the funds in 1994 and the time he transferred funds into his Fidelity account six years later. Given this testimony, there is no evidence to support any finding that the entire $15,266, which Husband inherited, was used to fund Husband’s IRA account.
A further review of the documents found within Exhibit 17, introduced into evidence by Husband, weighs even more heavily against the trial court’s finding. The annual statements of Husband’s Roth IRA with Fidelity Investments, which are part of Exhibit 17, show a steady decline in the investment value of the IRA from the ini
Point granted.
Conclusion
The judgment of the trial court is affirmed in part and reversed in part. The case is remanded with instructions that the trial court review its Amended Judgment in light of Section 452.350 regarding income withholding. We reverse the trial court’s order transferring $3125 to Husband from Wife’s 401(k) account. We reverse the trial court’s finding that Husband’s Roth IRA contained separate non-marital property. We remand this case with instructions to the trial court to recalculate the parties’ Division of Property and Debts and to take such further action as is in accordance with this opinion.
Notes
. All subsequent statutory citations are to RSMo 2000, unless otherwise indicated.
. While the evidence shows that Husband did not cash out his IRA, but borrowed from his IRA funds that are subject to repayment, we find this distinction irrelevant because the repayment of Husband's loan after the dissolution and property division will be made to his separate IRA, and not subject to a 50% division with Wife as are the current marital assets of the IRA.
. Such a finding fails to consider the commingling of Husband’s separate IRA funds in the same account, which the trial court also found to contain substantial marital funds. As neither party seeks to address this issue, we decline to do so.