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In re Marriage of Schubert

Court of Appeals of Missouri, Southern District, Second Division

March 23, 2018

IN RE THE MARRIAGE OF: KELLEY M. SCHUBERT and TODD R. SCHUBERT,
v.
TODD R. SCHUBERT, Respondent/Appellant. KELLEY M. SCHUBERT, Petitioner/Respondent,

          APPEAL FROM THE CIRCUIT COURT OF LAWRENCE COUNTY Honorable Robert E. George, Associate Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         Todd R. Schubert ("Husband") appeals the trial court's "Judgment and Decree of Dissolution" dissolving his marriage to Kelley M. Schubert ("Wife"), and issuing a modifiable award of maintenance to Wife in the amount of $2, 000 per month. In two points relied on, Husband (1) argues the trial court erred in issuing the award of maintenance because the trial court's findings that Wife lacked sufficient property and employment to meet her reasonable needs were against the weight of the evidence; and (2) if our disposition is favorable as to Point I, requests remand for recalculation of Husband's child support obligations. Finding no merit to Husband's points, we affirm.

         Factual and Procedural History

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

         Husband and Wife were married on June 7, 1997. Seven children were born of the marriage: twins R.S. and T.S., born in 2000; K.S., born in 2002; B.S., born in 2004; D.S., born in 2006; M.S., born in 2008; and T.S., born in 2011 (collectively "the Children").

         Wife worked as a nurse from 1997 to 2009. She began homeschooling the Children in 2004, and allowed her nursing license to lapse in 2013. Wife oversaw the vast majority of the Children's care, including their numerous individual extracurricular activities, such as church groups, music lessons, and sports. Wife worked part-time as a daycare worker earning $400 per month.

         Husband primarily worked as an insurance agent, and also worked at a livestock auction barn.

         In 2005, the parties began a chicken operation in partnership with George's Inc. Wife oversaw the management of this operation, which consisted of several different chicken houses, including one on the property by the family home. Husband would enlist the Children to work at the chicken houses, often pulling the Children away from homeschooling only a few hours after school had begun. The credited evidence was that Husband cared little for the Children's needs, including their schooling or activities, and treated them like "unpaid labor."

         We note that Husband displayed aggressive, violent, negligent, and reckless behaviors toward the Children. There was credited evidence of physical injuries some of the Children had sustained by Husband, and all of the Children were in counseling because of Husband's conduct. Even when attending counseling with the Children, Husband's conduct was extreme: Husband's behavior was something the counselor "had never [before] witnessed at her office."

         The parties initially separated in September 2014, after Wife learned of Husband's extramarital affair with a younger woman. Husband and Wife reconciled after Husband reported the affair was over, and Husband and Wife began marriage counseling. During counseling, Wife learned Husband had fathered a child with his paramour during the affair and as a result, the parties again separated on May 17, 2015. Wife filed a "Petition for Dissolution of Marriage" on June 22, 2015. Thereafter, Husband filed an answer and counter petition.

         The trial court entered a temporary order on August 28, 2015, whereby Husband was to pay Wife half the costs of the Children's extracurricular activities, as well as half the Children's medical, dental, and miscellaneous expenses.

         The parties continued the chicken operation, but Husband would consistently pay himself for more hours than he worked, and refused to pay the Children for the substantial amount of work they performed at his insistence.

         On February 18, 2016, Wife removed herself and the Children from the family home, leaving the chicken operation to Husband.

         Thereafter, Husband consistently violated the trial court's temporary order of August 28, 2015, by failing to pay Wife half of the Children's expenses. Wife pleaded with Husband, but to no avail. Recognizing Wife's dire financial situation, friends, neighbors, and others began giving wife "gifts" in the form of Wal-Mart cards and cash.

         A two-day trial commenced on August 2, 2016. Husband and Wife both testified, along with several other witnesses.[1]

         The trial court entered its "Judgment and Decree of Dissolution" on November 8, 2016. Husband had requested the chicken operation be awarded to him and accordingly, the trial court awarded Husband the right to purchase Wife's interest in the chicken operation for $330, 000, [2]within ninety days. Husband was also to refinance the debt of approximately $1, 603, 092, [3] and pay any real estate taxes due. Husband was to receive all the vehicles, equipment, machinery, and other personal property associated with the chicken operation, which included a 2012 Dodge truck valued at $26, 000, but with a debt of $3, 500. If Husband did not exercise his right to buy out Wife, then the chicken operation and all its assets would be sold, and the parties would divide equally the proceeds from the sale after payment of all mortgages, taxes, and expenses.

         The trial court awarded Wife, as her marital property: a 1992 Ford Ranger, with no assigned value; miscellaneous personal property, with an approximate value of $2, 800; a handgun with an approximate value of $600; four horses, with no assigned value; one-half of the Hen Account #4007803, or approximately $323; one-half of the money market account #4007761, or approximately $1, 500; one-half of the Health Savings Account, or approximately $2, 800; one-half of the Farm Bureau Life Insurance policy on Husband and Wife, or approximately $2, 288; one-half of the Farm Bureau Life Insurance policy on Husband, or approximately $2, 703; one-half of the Farm Bureau 401k account, or approximately $37, 600; one-half of the Thrivent annuity, or approximately $18, 381; one-half of the Farm Bureau annuity, or approximately $57; one-half of the Farm Bureau IRA, or approximately $1, 759; and one-half of the 50 percent interest in High Road Land and Cattle Company. Wife received approximately $70, 811, in marital property.[4]

         The trial court awarded Husband, as his marital property, the 2012 Chevrolet Suburban, with an approximate value of $32, 000 (and an approximate debt of $35, 000); firearms, with an approximate value of $3, 050; miscellaneous personal property, with an approximate value of $4, 400; one-half of the Hen Account #4007803, or approximately $323; one-half of the money market account #4007761, or approximately $1, 500; one-half of the Health Savings Account, or approximately $2, 800; one-half of the Farm Bureau Life Insurance policy on Husband and Wife, or approximately $2, 288; one-half of the Farm Bureau Life Insurance policy on Husband, or approximately $2, 703; one-half of the Farm Bureau 401k account, or approximately $37, 600; one-half of the Thrivent annuity, or approximately $18, 381; one-half of the Farm Bureau annuity, or approximately $57; one-half of the Farm Bureau IRA, or approximately $1, 759; and one-half of the 50 percent interest in High Road Land and Cattle Company. Husband received approximately $106, 861, in marital property.

         Husband was ordered to pay $27, 180 in marital debt, in addition to the approximately $35, 000 owed on the 2012 Chevrolet Suburban, or $62, 180. Wife was to pay marital debt in the amount of $8, 630. Husband was also to reimburse Wife the sum of $2, 814.75, for separate expenses she incurred from the chicken operation; and pay Wife an equalization payment in the amount of $2, 661.28, representing the value of the excessive draws taken by Husband from the chicken operation.

         Wife testified that she intended to continue homeschooling the Children, and the guardian ad litem testified that this was in the Children's best interest. The trial court issued an award of modifiable maintenance in the amount of $2, 000 per month, without time limitation. The trial court's findings indicated that the trial court:

considered the marital property apportioned to the parties, the financial resources of the parties, the educational status of the parties, the standard of living during the marriage, the duration of the marriage, the age, physical and emotional condition of the parties, the ability of each spouse to meet his or her needs, and the parties' conduct during the marriage, found that Wife lacked sufficient property to provide for her reasonable needs and was unable to support herself through employment.

         The trial court awarded sole legal and sole physical care and custody of the Children to Wife, with limited supervised visitation for Husband.

         In calculating child support, the trial court did not accept Wife's Form 14 as correct, and Husband did not file a Form 14. Instead, the trial court "calculate[d] its own" Form 14 to determine the amount of child support to be paid by Husband. The trial court found Wife's monthly income to be $2, 400 per month: $400 from her part-time teaching position, and $2, 000 in monthly maintenance. The trial court found Husband's gross monthly income to be $9, 632 per month: $5, 466 per month from his insurance job, an additional $2, 000 per month from the auction house, and $2, 000 per month from the chicken operation. Husband received credit for the $2, 000 monthly maintenance payment, reducing his monthly income to $7, 632. Using the calculations from the trial court's "Form 14 CHILD SUPPORT AMOUNT CALCULATION WORKSHEET, " the trial court ordered Husband to pay $2, 321 per month as child support for his seven children. In addition, Husband was to maintain health insurance on the Children, but the parties were ordered to pay one-half of any uninsured medical, optical, optometric, dental and orthodontic bills for the Children.

         Husband was also ordered to reimburse Wife for one-half of the Children's medical and dental expenses, and one-half of extracurricular expenses in the amount of $8, 655.15 that he was previously ordered, and that he previously refused, to pay. Husband was also ordered to pay $7, 000 toward Wife's attorney fees.[5]

         On December 8, 2016, Husband filed a "Motion to Vacate, Amend or Modify the Judgment, or in the Alternative, Motion for New Trial." Wife filed suggestions in opposition to the motion. The motion asserted, in relevant part, that the trial court erred in ordering Husband to pay child support in the amount of $2, 321, and monthly maintenance in the amount of $2, 000, as the trial court imputed income to Husband that he did not receive. The trial court denied Husband's motion on March 9, 2017. This appeal followed.

         In two points on appeal, Husband asserts (1) the trial court erred in issuing an award of maintenance in the ongoing amount of $2, 000 per month, in that the trial court's finding that Wife lacked sufficient property and employment to provide for her reasonable needs was against the weight of the evidence; and (2) conditioned on favorable disposition as to Point I, that remand is required to recalculate child support.

         Standard of Review

This Court must sustain the trial court's judgment in a dissolution case unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. This Court accepts as true the evidence and reasonable inferences therefrom in the light most favorable to the trial court's judgment, and disregards all evidence and inferences to the contrary.

Landewee, 515 S.W.3d at 694 (internal quotations and citations omitted).

         We will not interfere with an award of maintenance unless an appellant shows that it reflects such "arbitrary and unreasonable" decision-making by the trial court, and is so lacking in "careful consideration, " that the award "shock[s] our sense of justice[.]"[6] This standard is met where an appellant shows that the award of maintenance is "patently unwarranted and wholly beyond the means of the spouse who pays."[7] We will "affirm the trial court's decision on any basis supported by the [record;]"[8] therefore, to succeed on appeal, an appellant must show that no such basis exists.

         The credited evidence in this case, which we consider, was extensive. There were multiple hearings over the course of many months, and the transcript alone is over 1, 100 pages. The evidence the trial court could have credited, but did not, was also extensive. We do not consider that evidence. In an evidentiary challenge-whether substantial evidence or against the weight of the evidence-we do not consider evidence the trial court did not credit (either by explicit finding, or implication). See Houston v. Crider, 317 S.W.3d 178, 187 (Mo.App. S.D. 2010); White v. Director of Revenue, 321 S.W.3d 298, 304-05 (Mo. banc 2010).

         An against-the-weight-of-the-evidence challenge presupposes the existence of substantial evidence to support the outcome-that is, the argument presumes there was some evidence with "probative force on each fact necessary to sustain" it. Holm v. Wells Fargo Home Mortgage, Inc., 514 S.W.3d 590, 596 (Mo. banc 2017). In an against-the-weight-of-the-evidence challenge, we may consider a narrow category of evidence contrary to the judgment: evidence, where the effect "is legal, and there is no finding of fact to which [we] defer." White, 321 S.W.3d at 308. In other words, evidence of such a nature that the only "question before the appellate court is whether the trial court drew the proper legal conclusions" therefrom. Id.

         The significant burdens an appellant faces in bringing an against-the-weight-of-the-evidence challenge are well expressed in our Supreme Court's opinion in Ivie v. Smith, 439 S.W.3d 189, 205-06 (Mo. banc 2014):

Appellate courts act with caution in exercising the power to set aside a decree or judgment on the ground that it is against the weight of the evidence. A claim that the judgment is against the weight of the evidence presupposes that there is sufficient evidence to support the judgment. In other words, 'weight of the evidence' denotes an appellate test of how much persuasive value evidence has, not just whether sufficient evidence exists that tends to prove a necessary fact. See White v. Dir. of Revenue, 321 S.W.3d 298, 309 (Mo. banc 2010) (stating that 'weight' denotes probative value, not the quantity of the evidence). The against-the-weight-of-the-evidence standard serves only as a check on a circuit court's potential abuse of power in weighing the evidence, and an appellate court will reverse only in rare cases, when it has a firm belief that the decree or judgment is wrong.
When reviewing the record in an against-the-weight-of-the-evidence challenge, this Court defers to the circuit court's findings of fact when the factual issues are contested and when the facts as found by the circuit court depend on credibility determinations. A circuit court's judgment is against the weight of the evidence only if the circuit court could not have reasonably found, from the record at trial, the existence of a fact that is necessary to sustain the judgment. When the evidence poses two reasonable but different conclusions, appellate courts must defer to the circuit court's assessment of that evidence.
This Court defers on credibility determinations when reviewing an against-the-weight-of-the-evidence challenge because the circuit court is in a better position to weigh the contested and conflicting evidence in the context of the whole case. The circuit court is able to judge directly not only the demeanor of witnesses, but also their sincerity and character and other trial intangibles that the record may not completely reveal. Accordingly, this standard of review takes into consideration which party has the burden of proof and that the circuit court is free to believe all, some, or none of the evidence offered to prove a contested fact, and the appellate court will not re-find facts based on credibility determinations through its own perspective. This includes facts expressly found in the written judgment or necessarily deemed found in accordance with the result reached. ...

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