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In re Marriage of Hanson

Court of Appeals of Missouri, Southern District, Second Division

March 8, 2018

In re the Marriage of Charles M. Hanson and Annette Leigh Hanson
v.
ANNETTE LEIGH HANSON, Respondent-Respondent. CHARLES M. HANSON, Petitioner-Appellant,

         APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY Honorable Harvey S. Allen, Special Judge

          Before Rahmeyer, P.J., Bates, J., and Scott, J.

          PER CURIAM.

         Charles M. Hanson ("Husband") and Annette Leigh Hanson ("Wife") were married in 1990; the judgment of dissolution was entered on April 4, 2017. Husband brings four claims of error in the valuation and division of marital property; one claim in the refusal to order Wife to pay retroactive child support; another claim in awarding maintenance to Wife; and finally, a claim in the trial court awards for attorney fees. We find no error and affirm the judgment.

         Property Distribution

         For ease of discussion and because of our standard of review, we will discuss the claims of error in the property valuation and distribution first. Under our standard of review, we may reverse only if the trial court's judgment is not supported by substantial evidence, is against the weight of the evidence, or is an erroneous declaration or application of the law. In re Marriage of Scrivens, 489 S.W.3d 361, 363 (Mo.App. S.D. 2016). Additionally, it is not sufficient to simply claim error in the valuation or the distribution of a marital asset; Husband must also claim that the distribution was inequitable when considering the total award of assets. See Stroh v. Stroh, 454 S.W.3d 351, 362 (Mo.App. S.D. 2014) ("'Error in classifying property is not necessarily prejudicial unless it materially affects the merits of the action.'") (quoting Jinks v. Jinks, 120 S.W.3d 301, 306 (Mo.App. W.D. 2003)). Further, the trial court judgment is presumed correct. Stroh, 454 S.W.3d at 354. And finally, all credibility findings are within the province of the trial court. Id. at 354-55.

         With those standards in mind, we address Husband's four claims of property valuation and distribution error. Husband complains that the court erred in finding that real property, denominated Willow Funeral Home, was marital property. Husband admits that the real estate was acquired during the marriage and is jointly titled with a Mr. Andrew Gilmore, but argues that the funeral home was a gift from Gilmore. Husband frames the issue as a misapplication of the law and bases his argument on the testimony of Mr. Gilmore. Mr. Gilmore testified that when he purchased the funeral home it was Gilmore's intent that Husband only have a contingent interest in the funeral home. Husband's argument ignores the specific credibility findings of the trial court.

         The trial court found that Husband was solely an employee until July of 2014, at which time Husband began operating the funeral home as a sole proprietor. The court then looked at the "circumstances surrounding the acquisition of the funeral home real estate." The court noted it was Husband's understanding when he moved to Missouri that he would be able to buy into the business at some point. Wife testified the parties had some sort of partnership. The court noted that though Mr. Gilmore testified that Husband only had a contingent interest in the real estate, Husband is actually a one-half owner free of any contingencies. The court noted, "Mr. Gilmore appears to be an intelligent and sophisticated businessman who would not carelessly give away a half interest in his property. There was no testimony of any conveyances or legal proceedings taken or planned to correct or change [Husband's] ownership in the real estate." The court found that Husband's interest in the funeral home property was acquired during the marriage as a result of Husband's employment relationship with Mr. Gilmore. It was within the province of the trial court to disbelieve the testimony of Mr. Gilmore and determine that the real estate was acquired during the marriage and was not a gift.[1] The trial court's finding that the funeral home real estate was marital property was not error.

         Next, Husband also argues that the trial court erred in valuing the marital residence which was awarded to Husband at $108, 000 because there was no substantial evidence to support the valuation in that his expert testified the property was worth $35, 000. A little background is necessary. The home was purchased in 2005 for $108, 000. Husband initially valued the property on the property list at $115, 000. Wife valued the property at $150, 000. Husband hired an appraiser who claimed the property was only worth $35, 000. Husband now argues that the trial court erred in its valuation because the court was required to accept the valuation of the "expert." There is no such requirement for the trial court. Once again, we note the trial court's very specific and conscientious findings.

         The court noted that the expert was a licensed Missouri auctioneer, but not a licensed real estate appraiser. The court noted that, though the expert stated the standard for real estate appraisals was to use comparable real estate sales to determine value, the expert did not use any comparable sales. The expert testified that his price of $35, 000 was the price that it would bring at an auction. The court found that the deviation in the values placed on the house by the parties was too great and self-serving to be reliable testimony. The court specifically rejected the testimony of Husband that the house had deteriorated and that the debt was three times the amount of the value. Noting that "[w]hen the trial court's valuation of property is within the range of conflicting evidence of value offered at trial, the court acts within its discretion to resolve conflicts in evidence[, ] Taylor v. Taylor, 25 S.W.3d 634, 644 (Mo.App. W.D. 2000), " the trial court used the purchase price of $108, 000. The trial court did not err in using the purchase price of the property as the value for the real estate.

         Husband's next complaint about the property distribution is that the trial court awarded a Cadillac Deville to Husband that was no longer owned by the parties. Husband then presents in his argument the following facts without any attribution to the record.[2] Husband argues that we should accept as true the facts that the Cadillac was owned at the time of the dissolution, was listed on the initial property lists as marital property, and subsequently was sold in order to purchase another vehicle (a Ford Fusion). The problem is that even if we accept as fact that the parties owned a Cadillac at the time of the filing, we cannot accept as undisputed that Husband sold the vehicle in order to purchase the Ford Fusion. Husband does not show us anywhere in the record that the trial court concluded that the value of the Ford Fusion included the $500 from the Cadillac. In fact, the court specifically states that it did not include the $500 sales proceeds in the determination of the property division. First, the judgment is presumed correct. Furthermore, Husband failed to show how a $500 "error" materially affected the merits of the property distribution. Husband has not met his burden of showing any material error in the inclusion of $500 in the marital estate.

         Finally, as to the division of property, Husband alleges that the equalization payment "in the total sum of $28, 545.35 as 50% of the marital estate was an abuse of discretion because there was no substantial evidence to support such a finding." Husband's point is deficient. We cannot discern just what his complaint is. Husband appears to be complaining that Wife should not have been awarded 50% of the marital estate. We will interpret the point in that manner. Husband correctly states the law in his argument that an equitable division does not necessarily mean an equal division. See Jenkins v. Jenkins, 406 S.W.3d 919, 925-926 (Mo.App. W.D. 2013) ("The division of marital property is reviewed for an abuse of discretion and need not be equal but must be fair and equitable under the circumstances of the case.") (internal quotations and citations omitted). He admits that the trial court has great flexibility and far-reaching power to divide the marital property to accommodate the needs of the parties upon dissolution and that there is no formula respecting the weight to be given the relevant factors set forth in section 452.330.1.[3]See Waisblum v. Waisblum, 968 S.W.2d 753, 756 (Mo.App. W.D. 1998) ("'Section 452.330.1 gives the trial court great flexibility and far-reaching power to divide the marital property so as to accommodate the needs of the parties upon dissolution and there is no formula respecting the weight to be given the relevant factors which a court may consider." Crews [v. Crews], 949 S.W.2d [659, ] 664 [Mo.App. W.D. 1997].")

         Despite acknowledging our standard of review, Husband sets forth all of the factors that might support Husband receiving a greater share of the marital assets.

         In order to succeed in challenging a judgment as against the weight of the evidence, an appellant ...


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