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Courtney v. Courtney

Court of Appeals of Missouri, Eastern District, Fourth Division

December 26, 2017

SCOTT E. COURTNEY, Petitioner/Appellant/Cross Respondent,
v.
TERRESA K. COURTNEY, Respondent/Cross Appellant.

         Appeal from the Circuit Court of St. Louis County Hon. Mary Elizabeth Ott

          OPINION

          Lisa Van Amburg, Judge

         Scott E. Courtney (Father) appeals from the trial court's Order and Judgment entered July 21, 2016. Terresa K. Courtney (Mother) cross-appeals from the same judgment. Both Father and Mother challenge as internally inconsistent the parts of the judgment addressing child custody and property division. Additionally, Father challenges the trial court's denial of his motion to modify maintenance and its award of attorney fees to Mother. Mother argues that the trial court erred by not addressing in its judgment her evidence regarding extraordinary expenses from the extracurricular activities of the couple's two daughters (Daughters). We reverse and remand.

         Background

         The parties' divorce decree became final February 16, 2010. They have since engaged in near-continuous litigation, including a previous appeal to this court in 2015. The factual and procedural history of the litigation from the final divorce decree through the 2015 appeal was thoroughly recited in Courtney v. Courtney, 458 S.W.3d 462 (Mo. App. E.D. 2015), and we need not restate it here.

         In that appeal, this court remanded to the trial court the issues of custody and maintenance modification. Thereafter, Mother filed an amended motion to modify child custody and support, claiming that the original custody order was unworkable due to her relocation to Michigan. She also filed a "motion to determine amounts due." Father filed his own amended motion to modify child custody, visitation, maintenance, and child support. In this motion, Father requested that maintenance be terminated, that his visitation be modified to include more frequent and meaningful contact, and that child support be modified to include travel expenses he incurs when exercising custody. Father also claimed that Mother had not complied with the original dissolution order to give Father his share of certain marital assets.

         The hearing on the parties' motions took place in January 2016. Each party subsequently submitted proposed orders and proposed parenting plans. The guardian ad litem also submitted two proposed parenting plans. Additional facts relating to evidence presented at trial are recited below as relevant to the points on appeal.

         The trial court issued its Order and Judgment July 21, 2016. The judgment contained significant inconsistencies, which we discuss below. Mother and Father each filed a motion for a new trial on August 12 and 17, respectively. The trial court did not rule on either motion within ninety days of each filing. Hence, Rule 81.05(a)(2)(A) applies, and we consider the post-trial motions denied. This appeal follows.

         Standard of Review

         In a court-tried case, we will uphold the trial court's judgment as long as it is supported by substantial evidence, is not against the weight of the evidence, and does not erroneously declare or apply the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We defer to the trial court's determinations of credibility and view all facts and any inferences drawn therefrom in the light most favorable to the judgment. Vinson v. Adams, 192 S.W.3d 492, 494 (Mo. App. E.D. 2006).

         Discussion

         Point I and Cross-Points III-VII: The trial court's judgment contains findings of fact that are inconsistent with its orders regarding property division.

         Father, in his Point I, and Mother, in her Cross-Points III-VII, claim that the trial court's judgment is internally inconsistent with respect to the division of certain properties. Specifically, the parties identify the following:

1. JP Morgan restricted stock: In ¶32[1], the trial court finds that "Father was ordered to divide his JP Morgan restricted stock, " but the parties disagree as to whether Father actually did so. The court also found that Mother did not present evidence of what amount she was owed for her 50% share of the stock. In ¶36-39, the court lists and values certain properties it is allocating to each party. The court does not include the JP Morgan restricted stock in those lists.
• However, in ¶139, the court orders Father to pay Mother $16, 298.36 for her "50% value of JPMorgan - LTIP shares of restricted stock."
2. Chase pension plan: In ¶29(b), the trial court finds that the original dissolution decree provided that the full value of Father's Chase pension plan was $5, 850, to be divided equally (i.e., $2, 925 each). The trial court also finds that the parties stipulated to this value.
• However, the record reflects no such stipulation.
• Furthermore, in ¶143, the trial court orders Father to pay Mother a different value, $7, 591.51, for her 50% share of his Chase pension plan.
3. Citigroup 401(k): In ¶38, the trial court finds that the value of Father's Citigroup 401k was $0 at the time of the original dissolution and states that it cannot now assign a value to that property.
• However, in ¶142, the court orders Father to pay Mother $18, 151.81 for 50% of the Citigroup 401(k).
4. Merrill Lynch Nexstar rollover[2]: In ¶29(d), the trial court finds that the original decree provided that the full value of Mother's Merrill Lynch Nexstar rollover account was $26, 527. The trial court also finds that the parties stipulated to this value. Accordingly, the court finds in ¶36 that Father is entitled to $13, 263.50 from this account.
• However, the record reflects no such stipulation.
• Furthermore, in ¶149, the trial court finds that Mother owes Father a different amount, $6, 700, for the Merrill Lynch Nexstar rollover account.
5. Merrill Lynch Source One rollover[3]: In ¶37, the trial court finds that Father is entitled to $8, 824 for his 50% share of the Merrill Lynch Source One rollover account. The court notes that Mother requested that this account be considered her separate property but writes "this court is not vested with the authority to reclassify property and/or modify the property orders in the [original dissolution] judgment."
• However, in ¶148, the court orders that Mother owes Father nothing ($0) for the Merrill Lynch ...

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