Court of Appeals of Missouri, Western District, Second Division
FLOYD R. FINCH, Appellant,
JOANN K. FINCH, Respondent
Opinion Filed: September 16, 2014
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Jackson County, Missouri. The Honorable James F. Kanatzar, Judge.
Appeallant Acting Pro se.
Anita Rodarte, Kansas City, MO, Cousel for Respondent.
Before Division Two: Victor C. Howard P.J., James E. Welsh, Anthony Rex Gabbert JJ. All concur.
Anthony Rex Gabbert, Judge
Floyd R. Finch (" Husband" ) appeals the circuit court's judgment dissolving Husband's marriage to Joann K. Finch (" Wife" ). Husband raises eight points on appeal. Husband argues that the court abused its discretion in (1) awarding Wife 54% of the net marital assets, (2) awarding Wife $4,050 in monthly maintenance, (3) finding that Husband was under-employed and in attributing monthly income of $26,935 to him, (4) finding that Husband had failed to account for $100,000 in loan proceeds, (5) failing to credit Husband for the amount of health insurance premiums he was ordered to pay for his minor children in the court's Form 14, (6) requiring Husband to pay retroactive child support, (7) failing to address Husband's post-trial petition and motion, and (8) precluding Husband from cross-examining Wife with leading questions as an adverse witness and preventing him from offering his own testimony on Wife's failures as a homemaker. We affirm.
The parties were married on August 17, 1974. Shortly after they were married, Husband and Wife moved to Boston so that Husband could attend Harvard Law School. Wife worked to provide for them while Husband was in school. Husband worked during the summer to help with the finances.
Upon graduation from law school, Husband accepted a federal clerkship where he clerked for two years. After his clerkship was finished, Husband worked for a large law firm in Kansas City. Husband worked at this large law firm for 29 years, working his way up to a senior partner. In 2009, Husband and another former law partner left the law firm and started their own law partnership called Finch & Campbell. In 2012, four months before the marriage dissolution trial began, Husband left the partnership. Instead of looking for employment elsewhere, Husband decided to work for himself as a solo practitioner.
Husband and Wife had four children. Two of their four children are now emancipated. Shortly after Husband graduated law school, Wife became pregnant with their first child. Husband and Wife decided it would be best if Wife stayed home with the child.
Wife's highest level of education was completion of some hours as a junior in college. Wife held some part-time employment during the marriage, including work as a teacher's aide and part-time library clerk, which helped offset their children's private school fees. Her last employment was in 2005.
Throughout the marriage, Wife suffered significant health problems. In the year and a half before the trial, Wife had been hospitalized on four separate occasions. Wife suffered a heart attack and stroke in 2005. Wife has also suffered from periods of severe depression.
Over the course of their marriage, Husband and Wife accumulated quite a large marital estate, including a 7,000 square foot marital residence, four other properties, and generous retirement accounts.
On February 13, 2011, Husband told Wife that he had found someone he thought loved him more than anyone and he asked for a divorce. Husband met his paramour online and testified that she was the only person outside their marriage that he had sexual relations with during their marriage. Shortly before trial, in the summer of 2012, Husband traveled with his paramour for fifteen days to California and Oregon. Husband was living with his paramour at the time of trial.
The trial began on December 3, 2012 and extended over three days. Husband called Wife as his first witness and his direct examination of her lasted a day and a half. Husband's evidence was predominately devoted to his complaints regarding Wife's housekeeping. Husband requested a disproportionate division of the marital property in his favor due to his complaints of Wife's lack of housekeeping.
The trial court entered a Judgment Decree of Dissolution of Marriage on February 25, 2013. On March 14, 2013, Wife filed her Motion to Reconsider and for Amended Decree of Dissolution of Marriage. On June 7, 2013, the court entered its Amended Judgment of Decree of Dissolution of Marriage. The Amended Judgment found that Husband had the ability to earn approximately $26,935 per month, based upon his earnings history from 2007 to 2011. The judgment also ordered Husband to pay Wife child support of $2,409 per month commencing on January 1, 2013. Husband was additionally ordered to pay Wife as periodic maintenance the sum of $4,050 per month commencing
March 1, 2013. The trial court's division of martial property and debt resulted in Husband receiving a net award of 46% of the marital estate and Wife receiving a net award of 54%. Husband appeals.
Standard of Review
" This Court reviews a judgment in a dissolution proceeding under the same standard applicable to any other court-tried case." Hart v Hart, 210 S.W.3d 480, 484 (Mo. App. 2007). " The judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Foraker v. Foraker, 133 S.W.3d 84, 92 (Mo. App. 2004) (citing Murphy v Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). " In making these determinations, this Court views the evidence and all reasonable inferences drawn in the light most favorable to the judgment and disregards all other evidence and contrary inferences." Hart, 210 S.W.3d at 484.
Wife's Motion to Strike
Before addressing Husband's eight points on appeal, we first address Wife's motion to strike that was taken with this case because it directly affects several of Husband's points. In Wife's motion, she argues that a significant portion of Husband's appendix to his brief and legal files were filed or created by Husband after the trial adjourned and should therefore be stricken from Husband's appeal.
" Rule 78.05 authorizes affidavits, depositions, and oral testimony in connection with after trial motions." Powell v State Farm Mut. Auto. Ins. Co., 173 S.W.3d 685, 689 (Mo. App. 2005). " Where the issue raised in the after trial motion requires resolution of factual matters not based on facts appearing in the record, the rule authorizes proof by any of the listed methods." Id. Here, none of Husband's claims for a new trial require the resolution of factual matters not based on facts appearing in the record such that additional evidence is needed. Instead, Husband wants the trial court, and now this Court, to consider evidence that he failed to present at trial. However, " [e]xhibits attached to motions filed with the trial court are not evidence and are not self-proving." Id. See also Dawson v. Dawson, 366 S.W.3d 107, 115 n.11 (Mo. App. 2012) (finding " Mother's Exhibit A to her post-trial motion was not admitted into evidence, and could not have been considered by the trial court." ); In re Marriage of Thomas, 21 S.W.3d 168, 178 n.11 (Mo. App. 2000) (finding that for the appellate court to treat Exhibit A to Husband's post trial motion " as evidence on appeal without having offered it would deprive Wife of her opportunity to present objections to the exhibit and challenge its admission into evidence." ). Therefore, Wife's motion to strike portions of Husband's legal file and appendix referencing the exhibits attached to Husband's post trial motion is granted. Any reference to these stricken exhibits in Husband's points will not be considered in deciding those points. However, we do not strike points II, III, and V of Husband's brief as Wife's motion to strike seeks.
Division of Marital Property
In Husband's first point on appeal, he argues that the trial court abused its discretion in awarding Wife 54% of the net marital assets in its Amended Judgment because (1) Wife's interrogatory answers waived any claim for marital misconduct, (2) Wife requested an equal division of marital assets at trial, and (3) Wife's post-trial claim for marital misconduct justifying an unequal ...