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In re Sivils

Court of Appeals of Missouri, Southern District, Second Division

September 12, 2017

In re the Marriage of Kent A. Sivils and Patricia J. Sivils.
PATRICIA J. SIVILS, Respondent/Respondent. KENT A. SIVILS, Petitioner/Appellant,

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable J. Ronald Carrier, Associate Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         Kent A. Sivils ("Husband") appeals the "Judgment and Decree of Dissolution of Marriage" ("Judgment") entered by the trial court.[1] In two points on appeal, Husband asserts the trial court erred in failing to make a proper division of marital property. Finding no merit to Husband's claims, we affirm.

         Factual and Procedural History[2]

         We recite the facts of this matter in accord with the principle that we view the facts in the light most favorable to the judgment. We credit all evidence and reasonable inferences in favor of the judgment, and disregard unfavorable facts and inferences. Landewee v. Landewee, 515 S.W.3d 691, 694 (Mo. banc 2017).

         Husband and Patricia J. Sivils ("Wife") were married on March 16, 1996. Two children were born of the marriage: daughter K.M.S., now age 20, and son C.A.S., now age 15.

         After leaving the Navy, Wife[3] obtained a radiology license and began employment at Ferrell-Duncan Clinic in Springfield as an x-ray mammographer in 1994. As of 2015, her yearly income was $59, 633.00. Through that employment, Wife contributed to a retirement account with a balance of approximately $195, 000.00, at the time of trial.

         Husband held various jobs during the marriage, including auto body work, and heating and air conditioning work. At the time of trial, he was doing auto body work and had been employed for a year and a half. His wages for 2015 totaled $38, 064.69.

         In the course of the marriage, Husband displayed bellicose and violent behaviors toward Wife. On at least two occasions, Husband hit Wife. Husband would go on "verbal rampages" against Wife, often in front of the children. In such instances, the children would become scared, run to their rooms, and put their sheets over their heads. Husband would also berate Wife in public, using coarse and derisive language.

         When C.A.S. was two, he began sleeping with Husband and Wife in the marital bed.[4] At this time, Husband was already primarily sleeping in the basement and had "disconnected" himself from the rest of the family. Husband would work out in the garage until the early morning hours and then would "crash out downstairs." When C.A.S. began sleeping in the marital bed, Husband permanently removed himself from the marital bedroom and moved into the basement.

         After Husband moved to the basement, he had little contact with the children. He attended very few school events or extracurricular activities, leaving the parenting duties to Wife. Both children were involved in competitive dance, particularly C.A.S. Wife took the children to regular dance practices and competitions. Husband had no substantive involvement with C.A.S., particularly with his dance activities. He also failed to attend parent-teacher conferences and school open houses for C.A.S. Husband also contributed very little to the children's support, leaving Wife the burden of meeting the children's needs. Wife paid, among other expenses, costs associated with the children's health and dental insurance, accidental insurance for C.A.S., and $465.00 per month for C.A.S.'s dance expenses.

         In 2010, Husband was involved in a motorcycle accident when he collided with a FedEx truck. Husband sustained scrapes, bruises, and a broken wrist. Husband was released to return to work after a few weeks, but refused Wife's requests do so because he "thought that if he didn't go back to work, " they "would get more money." From 2010 until 2014, Husband mowed a few lawns, did some side auto body repair work, and received some unemployment funds. Husband kept the money he made from mowing lawns and the auto body repair work for himself, and only deposited the unemployment funds in the couple's joint account.

         During this time, Wife was paying all of the household expenses, relying heavily on credit cards at Husband's urging. Husband insisted that once he received a settlement for his accident, the money would be used to pay off the credit cards. Wife incurred substantial credit card debt as a result. Husband also utilized credit cards, but used the cards for personal rather than family expenses. Husband's parents occasionally deposited money into the couple's joint bank account to help with expenses.

         In March 2012, Husband settled the personal injury lawsuit arising out of the motorcycle accident, and received net settlement proceeds of $103, 076.72. The funds were initially deposited in Husband and Wife's joint account, pending a temporary hold until the funds could be released for joint use by the parties. However, Husband's father persuaded a senior vice president at the bank to remove the hold, and Husband then wrote a check to his mother for $25, 000.00, and a check to his father for $50, 000.00. Husband's mother in turn wrote a check for $56, 000.00, and used it to open a checking account in her name, but the account was for Husband's exclusive use. Husband's purpose in having the account opened was to prevent Wife from having any access to these funds, and so that Husband could conduct whatever financial transactions he wanted without Wife's input or interference.

         When Wife discovered that the hold on the account had been surreptitiously lifted and a significant portion of the funds removed, she moved the remaining $23, 000.00 to her own separate account. She used those funds for household expenses, and expenses relating to the children.

         Because of Husband's actions, in 2012, the parties stopped operating from a joint checking account. Wife provided Husband with a list of expenses relating to the children, and requested Husband's assistance in paying them. Husband refused, and even declined to contribute toward the children's clothes and school lunches. He also decided, after he obtained his settlement, that he would no longer contribute any money toward groceries because Wife and his children "wasted so much food that I-I just couldn't deal with that anymore[.]"

         Husband initially paid some marital bills out of the $56, 000.00, including mortgage payments on the marital home, utilities, and credit cards. Husband also paid for Wife's car insurance in exchange for Wife keeping Husband on her healthcare insurance. However, at one point, Husband refused to pay the propane bill, and the propane company locked the propane tank, which left the family with only a pellet stove as a source of heat for the entire house.

         Husband then squandered a significant amount of the settlement funds on personal entertainment such as online gambling, as well as betting on horse races and football games through a bookie.

         Also in 2012, Husband threatened to kill wife. Wife sought an ex parte order of protection, which she subsequently dropped.

         After K.M.S.'s graduation from high school, Wife wished to take the children on a cruise. Husband refused to consent and sign the necessary paperwork for the children to obtain passports. He later suggested he would have consented if the children were to "grovel[] a little bit."

         In February 2014, Husband obtained a check for $1, 200.00 from the couple's joint investment account at Edward Jones. The check was payable to Husband and Wife, but Husband forged Wife's signature on the check, and then deposited the check into his separate account on March 4, 2014.

         Husband filed for divorce on March 20, 2014. Wife filed an answer and a "Counter Petition for Dissolution of Marriage." Husband subsequently returned to work and was ordered to pay temporary child support in the amount of $665.00 per month for the support of the couple's two children, which Husband did not voluntarily pay so that Wife was forced to garnish his wages.

         Soon thereafter, Husband stopped paying the insurance on K.M.S.'s car. He did not inform Wife, but instead texted his daughter, stating: "I hope you're not driving your car, because you don't have insurance on it[.]"

         As part of the marital property, Husband and Wife owned a house and real estate they used for rental income. Wife actually acquired this property in 1994, prior to the marriage, but in 2002, added Husband's name to the title of the property when they began using it as rental property. A mortgage remained on the property, which Wife continued to pay. For a time, both Husband and Wife were involved in the rental property. In 2012, after the couple separated their finances, Husband told Wife, "I'm not going back over there. You know what? It's all yours. I'm done[.]" Thereafter, without any help from Husband, Wife made the necessary repairs on the rental property, performed all business matters related thereto, and continued to pay the mortgage. To do so, Wife borrowed money from her mother. Thereafter, the rental property was sold for approximately $90, 000.00. After payment of the existing mortgage, Wife netted the amount of $22, 677.62.[5]

         In May 2014, Husband repaired the radiator in Wife's car, for which he sent her an invoice for his labor. At the end of the invoice, he handwrote a note: "I want my money. If I don't get it, I will put a hole in your new radiator." Husband subsequently attempted to explain this note by suggesting he performed the work on a Saturday, it was hot, Wife was unable to take the car anywhere else because "they wouldn't do it for free, " and "all [Wife] did was pay for the radiator."

         Also in May 2014, Husband stopped paying the mortgage on the marital home, but did not tell Wife. He received a delinquency/foreclosure notice from the mortgage company, and a notice to vacate, but again did not inform Wife. In October 2014, Wife learned through a friend at an insurance company that her house had been sold at a foreclosure sale 20 days prior, and that there was a letter of eviction for the family's removal from the marital home.[6]

         Unaccustomed to foreclosure and post-foreclosure proceedings, and fearing that her things and those of her children would be put out in the yard if she did not vacate the marital house immediately, Wife quickly found a new place to live, and moved out by November 6, 2014. C.A.S. was devastated when he learned he would have to move from the only home he had known, and that Husband had "never said a word to him" about it. Wife did all the packing for the move in the evenings after she finished taking the children to their dance activities. Husband did not assist at all in this endeavor. When Wife and the children moved, Husband again gave no assistance, and Wife was forced to rely on friends to move the family's belongings.

         Husband remained in the marital house for several more months without making any payments or arrangements for his continued occupancy of the home. In December 2014, an unlawful detainer action was filed against both Husband and Wife for Husband's continued occupancy of the house. Despite Husband being served with this action, which listed Wife also as a defendant, Husband did not inform Wife. Wife was never personally served, and when she learned of the action, incurred attorney's fees defending herself even though she had vacated the house.

         Since 2014, Husband removed himself entirely from C.A.S.'s life. Husband spent between two and three minutes a month with C.A.S., and texted him approximately once a month. In November 2014, the guardian ad litem requested Husband attend a dance performance in which C.A.S. was participating. Husband watched one dance, and then left. C.A.S. looked for Husband as soon as he was done dancing, but Husband had already left.

         A two-day trial commenced on May 31, 2016. On August 2, 2016, the trial court entered its "Judgment and Decree of Dissolution of Marriage." The trial court awarded the parties joint physical custody of the children, with Wife having sole legal custody and Wife's address designated for mailing and educational purposes. Husband was awarded parenting time with the children per the trial court's parenting plan. Husband was to pay the sum of $778.00 per month for child support for both children until K.M.S. became emancipated, at which time he would then pay the sum of $633.00 per month for C.A.S. The child support included court-ordered extraordinary costs for the children of $465.00 per month.[7]

         The trial court awarded to Wife non-marital furniture and personal property in the amount of $761.00; the children's furniture and personal property in the amount of $400.00; and marital property in the amount of $231, 078.14.[8] The trial court ordered Wife to pay marital debt in the amount of $73, 058.88.[9]

         The trial court awarded to Husband non-marital furniture and personal property in the amount of $3, 286.00. Husband was awarded marital property in the amount of $6, 525.00, and was ordered to pay $30, 775.82 of the marital debt.[10]

         The trial court acknowledged that the division of property and debt weighed in favor of Wife, but that

having considered all relevant factors including, but not limited to, the specific factors as set forth herein the [c]ourt does find that the division of property and debt . . . is fair and equitable under the circumstances of this case. Frankly, [Husband]'s treatment of his wife and children both emotionally and financially is one of the more severe cases of such conduct this [c]ourt has witnessed.

         Husband filed a motion for rehearing and a motion to amend judgment, both of which ...

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