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Schutter v. Seibold

Court of Appeals of Missouri, Western District, Third Division

February 27, 2018

JENNIFER L. SCHUTTER, Respondent,
v.
PAUL J. SEIBOLD, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY The Honorable James. W.Van Amburg, Judge

          Before Gary D. Witt, Presiding Judge, Lisa White Hardwick and Edward R. Ardini, Jr., Judges

          LISA WHITE HARDWICK, JUDGE.

         Paul Seibold ("Husband") appeals from the judgment dissolving his marriage to Jennifer Schutter ("Wife"). He contends the circuit court erred in identifying, classifying, valuing, and dividing several items of the parties' property. He also asserts that the court violated his right to freedom of speech by ordering him not to demean or disparage Wife. Lastly, Husband argues that the court erred in incorporating a preliminary injunction into the amended judgment and in denying his motion to set aside the amended judgment as void under Rule 74.06(b)(4). For reasons explained herein, we affirm, in part, and reverse and remand, in part.

         Factual and Procedural History

         Husband and Wife were married in November 2002 and had one son, born in July 2009. Son is a special needs child who requires extensive medical and therapy care and 24-hour assistance and supervision. Wife is a physician and minority owner of Northland Hospitalists. Husband is an information technology sales specialist with Cisco Systems.

         The parties separated in March 2012, after Wife filed a petition for dissolution of marriage, and Husband filed a counter-petition. In an amended petition, Wife sought sole legal and physical custody of Son and also asserted a count for conversion, in which she alleged that Husband had converted $450, 000 in marital assets to his own use. Husband sought joint legal and physical custody of Son and denied Wife's conversion claim.

         Trial was held over several days in April, September, October, and November 2013. The court entered a judgment dissolving the marriage in December 2013. In its judgment, the court awarded Wife sole legal custody and the parties joint physical custody of Son. Husband was ordered to pay child support, including an arrearage of $31, 410. The court awarded Wife $619, 389 in marital assets and Husband $745, 120 in marital assets, and the court ordered Husband to pay $101, 265 to Wife to equalize the division of assets. In dividing the parties' property, the court considered, among other things, that Husband had dissipated $638, 360 in marital assets during the parties' separation, provided only nominal financial assistance to Wife and Son while the dissolution was pending, and failed to comply with the court's temporary order to pay one-third of the mortgage on the marital residence pending resolution of the dissolution.

         Both parties filed post-judgment motions seeking to amend the judgment or to reopen the evidence. In his motion, Husband took issue with several of the court's findings as to why its custody arrangement and parenting plan were in Son's best interest. Husband also challenged the court's calculation of child support and the arrearage, its findings concerning his dissipation of marital assets, and the court's valuation and division of marital property. In her motion, Wife challenged the award of joint physical custody, the amount of parenting time awarded to Husband, and some of the other parenting plan provisions.

         The court held a hearing on the parties' motions on March 10, 2014. The court entered an amended judgment of dissolution of marriage on March 25, 2014. In the March 2014 amended judgment, the court adjusted some of the parenting time provisions and ordered the parties to pay the Guardian ad Litem's remaining fees.

         Both parties filed post-judgment motions seeking to reconsider or amend the March 2014 amended judgment or to reopen the evidence. In his motion to reconsider the March 2014 amended judgment, Husband again challenged the court's findings that its custody arrangement and parenting plan were in Son's best interest, the calculation of child support and the arrearage, the court's findings concerning his dissipation of marital assets, and the court's valuation and division of marital property. In her motion to correct, vacate, amend, or reopen evidence, Wife alleged, that, since the entry of the March 2014 amended judgment, she learned of other assets belonging to Husband that he had not disclosed to the court. Specifically, she alleged that Husband had failed to disclose his interest as the sole owner of Progressive Journey, Inc., a Nebraska corporation, and he had failed to disclose that Progressive Journey owned a home in Parkville ("the Deer Run property") that was valued at $384, 000. Additionally, Wife alleged that Husband possessed a car that he had claimed in court not to possess. Wife also filed an application for order to show cause why Husband should not be held in contempt of court for failing to pay the court-ordered child support and the $101, 265 money judgment that the court ordered Husband to pay Wife in the March 2014 amended judgment.

         On June 19, 2014, the court entered an order sustaining Wife's post-trial motion. The court set aside the March 2014 amended judgment only as to the property and debt division and attorney's fees and expenses.

         Meanwhile, on June 9, 2014, Wife filed a petition for a temporary restraining order without notice and motion for emergency modification of parenting time. The court granted Wife's petition for a temporary restraining order without notice after finding that Son was "abused and/or neglected" while in Husband's care and that, despite Wife's best efforts, Husband could not be served prior to the court's issuing the order. The court granted Wife temporary sole legal, physical, and residential custody of Son, restrained Husband from having unsupervised contact with Son, and ordered that a hearing be held in 10 days. After several continuances and extensions of the temporary restraining order, the court, with the parties' agreement, issued a preliminary injunction on September 2, 2014, restraining Husband from exercising unsupervised parenting time with Son "until the Full Injunction Hearing/Restraining Order Hearing can be held in this matter" and awarding Wife temporary sole legal, physical, and residential custody of Son "immediately and until further Order of this Court." In October 2014, Husband filed a motion for trial setting on the injunction, but the record does not indicate that any further action was taken on this motion.

         With regard to the new trial on the property issues, the court issued an order advising the parties that they could "introduce relevant evidence of the value of any asset owned by the parties at the time of the Dissolution of Marriage." The new trial was originally set to occur in October 2015 but was continued to December 2015 and finally held in February 2016. On April 18, 2016, the court entered an amended judgment of dissolution of marriage.

         Wife subsequently filed a motion to correct, amend, or issue a nunc pro tunc judgment to include the legal description of the marital residence in the judgment. Husband filed a motion for new trial or to amend the judgment. The court entered a nunc pro tunc amended judgment adding the legal description of the marital residence on May 20, 2016. In the May 2016 amended judgment, the court stated that "this matter comes on for trial and further evidentiary hearing on the topics of asset and debt identification, valuation, characterization, and division." Before addressing the property issues, the court stated in its findings that all orders regarding Son were contained in the March 2014 amended judgment and the September 2, 2014 preliminary injunction. The court then classified, valued, and divided all of the parties' assets and debts.[1] The court noted that it considered Husband's misconduct, which it set forth in five pages in the judgment, when dividing the parties' marital property. Husband's acts of misconduct included, among other things, fraudulently hiding and secreting marital property, squandering marital assets, failing to make full disclosure of all assets, misrepresenting his financial status during testimony under oath, testifying falsely about assets under oath, and disobeying the court's orders. Husband appealed.[2]

         In February 2017, Husband filed a motion in the circuit court to set aside the May 2016 amended judgment pursuant to Rule 74.06(b)(4). Husband argued that, insofar as the judgment purported to make the September 2, 2014 preliminary injunction permanent, the court violated Rule 92 because it did not afford him a trial on the merits. Husband also argued that the May 2016 amended judgment was void because it modified his custody of Son to allow him only supervised visitation without providing him any notice or hearing on the merits to support the modification, thereby depriving him of due process.

         After Wife filed suggestions in opposition to Husband's motion, the court held a hearing and denied Husband's motion. Husband appealed this judgment. We consolidated Husband's appeals.

         Standard of Review

         Appellate review of a dissolution judgment is under the standard of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Jenkins v. Jenkins, 368 S.W.3d 363, 366 (Mo. App. 2012). We will affirm the circuit court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Id. at 366-67. The party challenging the dissolution judgment has the burden of demonstrating error. Shaw v. Shaw, 413 S.W.3d 332, 334 (Mo. App. 2013). We view the evidence and any reasonable inferences therefrom in the light most favorable to the court's decision and disregard all contrary evidence ...


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