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Fike v. Fike

Court of Appeals of Missouri, Eastern District, Second Division

October 11, 2016

SUSAN FIKE, Respondent/Cross-Appellant,
v.
PAUL FIKE, Appellant/Cross-Respondent.

         Appeal from the Circuit Court of St. Louis County Cause No. 13SL-DR01841 Honorable Kristine A. Kerr

          COLLEEN DOLAN, JUDGE.

         I. Introduction

         Paul Corrington Fike (Husband) and Susan Fike (Wife) appeal the trial court's second amended judgment dissolving their marriage. Husband argues the court erred and abused its discretion in determining the value of certain marital property, dividing the marital property inequitably, over-calculating his income for purposes of child support and maintenance, and awarding Wife maintenance and attorney's fees. Wife argues the court erred in calculating Husband's income, not finding him guilty of marital fault, classifying the marital home as marital property, ordering Wife to pay the Home Equity Line of Credit (HELOC) associated with the marital home, awarding Husband two diamonds from Wife's engagement ring, and in not awarding Wife attorney's fees at trial. We find the court did not err or abuse its discretion on any point raised by Husband or Wife, with the exception of awarding Husband the two diamonds from Wife's engagement ring, therefore we affirm in part and reverse in part.

         II. Factual and Procedural Background

         Husband and Wife were married on May 8, 1999. They had three children, T.F., G.F. and C.F., who were all minors at the time of trial and this appeal. Wife filed a Petition for Dissolution of Marriage on March 19, 2013, and Husband's counter-petition was filed on June 10, 2013. The parties entered into a consent pendente lite judgment on June 27, 2013. Trial was held on October 6-8th, 2014, and the court heard evidence of the value of the parties' property, their income, expenses, and debts. The court entered its judgment on June 30, 2015, which divided the marital property, awarded separate property, and ordered Husband to pay maintenance and child support to Wife.

         The court declined to base any of its judgment on a finding of marital fault between the parties.

         On July 29, 2015, Husband and Wife timely filed post-trial motions. On August 6, 2015, the court denied all of Appellants' post-trial motions. Husband timely filed his Notice of Appeal on August 17, 2015 and Wife on August 24, 2015. Additionally, Wife filed a motion for attorney's fees on appeal on September 3, 2015. The court held a hearing on November 17, 2015 on the issue of attorney's fees and awarded Wife $12, 000.00 in attorney's fees. Husband filed a notice of appeal on December 10, 2015. The appeals of both parties were consolidated by this Court. This appeal follows.

         III. Standard of Review

         An appellate court will affirm a trial court's judgment modifying a dissolution decree so long as there was substantial evidence to support the trial court's holding, it was not against the weight of the evidence, and it did not erroneously declare or apply the law. See Kropf v. Jones, 489 S.W.3d 830, 834 (Mo. App. E.D. 2015) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). On appeal, this Court views the "evidence and inferences in the light most favorable to the trial court's decision and disregard[s] all contrary evidence and inferences." Potts v. Potts, 303 S.W.3d 177, 184 (Mo. App. W.D. 2010). "The party challenging the dissolution decree has the burden of demonstrating error." McCallum v. McCallum, 128 S.W.3d 62, 66 (Mo. App. E.D. 2003).

         IV. Discussion

         A. Husband's Points on Appeal

         i. The court did not err or abuse its discretion in using the property values determined at trial when dividing the marital property.

         Husband argues in his first point that the trial court erred by dividing certain marital property based on stale evidence that did not show the property values reasonably proximate to the effective date of distribution and the trial court should have held an evidentiary hearing to determine the values of particular assets closer to the time of their effective distribution. Specifically, Husband takes issue with the values for the marital home, the mortgage and HELOC balances, and the values of both parties' accounts with Fidelity Investment Services. He claims all of these properties are subject to significant market fluctuations and he requests that we reverse and remand the portion of the judgment dividing the properties and order the trial court to receive evidence to determine their valuations as close to the effective date of the division as possible.

         In his brief, Husband sets out the values of each of these properties at the time of trial but does not provide any evidence suggesting the values significantly changed between the time of trial and the time of judgment. Husband relies heavily on McCallum v. McCallum, in which the appellant successfully challenged the division of marital property on the basis of stale evidence. 128 S.W.3d at 68. In McCallum, this Court reversed the trial court's division of the marital home, holding the distribution of the property occurred over a year after the court heard evidence of its value. The court noted this determination was property specific: "For example, a nine-month gap between evidence and judgment as to the value of the marital home may have a negligible effect on the property division, whereas a nine-month gap in valuing stocks traded on the open market could be extremely unreliable." Id. 66-67.

         In Taylor v. Taylor, the Supreme Court of Missouri held that the proper date for valuation of marital property was at the time of trial. 736 S.W.2d 388, 391 (Mo. banc 1987). Additionally, our Court in McCallum held § 452.330.1(1) "requires the court to consider the economic circumstances of each spouse at the time the division of property is to become effective" but this is not incompatible with the Supreme Court's directive. 128 S.W.3d at 66. This Court stated the "[v]aluation of property should be reasonably proximate to the date the division is to be effective. If the effective date of the distribution is not reasonably proximate to the date of valuation, the court should hold another hearing to establish a valuation[.]" Id. In determining whether the trial court committed reversible error we must find the alleged error materially affected the merits of the action. Id. (citing Rule 84.13(b)). In order to be material, the error must have a reasonable possibility of being prejudicial to the complaining party. McCallum, 128 S.W.3d at 66. Furthermore, "where the evidence does not indicate clearly that the value of the property is volatile, the party challenging the valuation must allege prejudice." Id. at 67. To allege prejudice the appellant must assert the property has significantly changed in value. Id. We noted in McCallum that lapse in time is an important factor to consider in determining the materiality of a court's error, with longer time lapses having greater potential for a change in value and prejudicial error. Id. at 66.

         At trial, both parties presented appraisals of the marital home's value. Wife's appraisal was completed in October 2013, and valued the home at $320, 000.00. Husband's appraisal was completed in March 2014, and valued it at $350, 000.00. The court stated in its judgment that it averaged the two estimates to ascribe a value of $335, 000 to the home, noting the parties had not presented any other evidence for the court to consider on the record. The court found the remaining mortgage on the property was $134, 880.00 and the HELOC was $50, 942.00. The court entered judgment on June 30, 2015, and divided the marital property, awarding the marital home, mortgage and HELOC loan to Wife. The court ordered Wife pay Husband 33% of the equity after refinancing the home to remove his name from the mortgage and HELOC loan.

         Husband disputes the distribution of Wife's Fidelity Investment Services accounts. The court classified Wife's three accounts as marital but awarded them to Wife in full. These accounts are (1) an individual brokerage account (#5204) with a balance of $29, 156.94 at the time of trial, (2) a Roth IRA account (#6179) with a balance of $22, 959.73 at the time of trial ($18, 042.00 of which was money paid to Wife in error by State Farm that had to be returned), and (3) a second Roth IRA account (#2897) with a balance of $200, 766.00 as of October 2014. The court valued all of these accounts at $234, 840.67.

         On appeal, Husband did not demonstrate how the values of the marital home, mortgages, or Fidelity accounts were volatile. Additionally, Husband did not present any evidence showing the values of these assets had significantly changed between trial and distribution. The court distributed the property eight months after trial, noting in its judgment "that real estate values are a moving target, subject to change, depending on variable factors such as market developments, interest rates, and sales of comparable homes in the neighborhood[.]" We find the court's determination of the value of the properties was reasonably proximate to their value at the time of effective distribution. Therefore, the court did not err or abuse its discretion in denying to hold an evidentiary hearing on the value of the properties prior to issuing its order and judgment.

         ii. The court made an equitable division of marital property.

         Husband argues in his second point on appeal that the court erred and abused its discretion in making an inequitable division of marital property that was not supported by substantial evidence. "Trial courts must divide marital property after considering, among other relevant factors, the criteria set out in § 452.330.1, " which requires a fair and equitable distribution of property. Dardick v. Dardick, 670 S.W.2d 865, 869 (Mo. banc 1984); see also Hart v. Hart, 210 S.W.3d 480, 485 (Mo. App. W.D. 2007) ("The division of property does not necessarily need to be equal, but it must be fair and equitable under the circumstances of the case"). Trial courts are vested with great discretion in dividing marital property and an appellate court will only reverse if the court abused its discretion by making a division that is heavily and unduly weighted in favor of one party. Dardick, 670 S.W.2d at 869.

         The factors a court must consider under RSMo § 452.330, RSMo 2000[1] are:

(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a ...

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