Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County Cause No.
13SL-DR01841 Honorable Kristine A. Kerr
COLLEEN DOLAN, JUDGE.
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.
Factual and Procedural Background
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.
court declined to base any of its judgment on a finding of
marital fault between the parties.
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.
Standard of Review
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).
Husband's Points on Appeal
court did not err or abuse its discretion in using the
property values determined at trial when dividing the marital
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.
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.
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.
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
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,
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.
court made an equitable division of marital property.
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
factors a court must consider under RSMo § 452.330, RSMo
(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 ...