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Fox v. Fox

Court of Appeals of Missouri, Eastern District, First Division

June 26, 2018

ROBERT V. FOX, SR., Appellant,
YING HUANG FOX, Respondent.

          Appeal from the Circuit Court of St. Charles County Honorable John Paul Banas

          KURT S. ODENWALD, Judge


         Robert V. Fox, Sr. ("Husband") appeals from the trial court's judgment, dissolving his marriage to Ying Huang Fox ("Wife"), dividing the parties' marital property, and ordering him to pay maintenance. On appeal, Husband asserts that the trial court erroneously considered Wife's physical and emotional condition in granting maintenance. Husband also contends that the trial court erred because it failed to factor the short duration of the marriage when computing maintenance and awarding Wife a marital interest in the parties' residence, which Husband acquired prior to the marriage.

         The trial court properly considered evidence of Wife's physical and mental condition when awarding maintenance. Moreover, we are not persuaded that the length of the parties' marriage required a reduction in the maintenance award. Nor are we convinced that the trial court erred in finding that the equity accrued on the parties' residence during the marriage was marital property, and not the separate property of Husband. Accordingly, we affirm the trial court's judgment.

         Factual and Procedural History

         Husband and Wife met online through a dating website. Husband resided in the United States. Wife resided in China with her daughter ("Daughter") from a previous relationship. After meeting several times in person, Husband brought Wife to the United States, and they married in January 2009. Husband, Wife, and Daughter settled in St. Charles, Missouri.

         While in China, Wife worked as an assistant to a stockbroker and attended a few night classes in accounting. After moving to the United States, Wife initially was unemployed. Because Wife's command of English was very limited, she attended English classes at a local community college. Wife later obtained part-time work in an Asian gift shop in 2011, but the shop closed in 2014. Subsequently, Wife unsuccessfully applied to work for an outlet store. Wife claimed that she struggled to find employment because of her inability to understand English and her physical and emotional condition. Specifically, Wife testified that she was often dizzy, felt spinning sensations, suffered from headaches, and experienced emotional instability.

         Prior to the marriage, Husband worked for the United States military. After he retired, Husband received a net monthly military pension and disability payment of $1755. During the marriage, Husband frequently worked overseas for private companies, providing security services for foreign mining interests. Husband often spent nine or ten months a year in Indonesia. Although Husband experienced a period of unemployment, when employed he averaged an annual salary of $150, 000. In 2016, Husband obtained a new security contract paying him approximately $135, 000 annually.

         Husband deposited both his salary and military pension in the same Bank of America checking account. After depositing the money, Husband paid the parties' joint bills and most of Wife's bills. Husband also regularly transferred money from the Bank of America checking account to Wife's bank account as her "allowance." Husband did not provide Wife with access to his checking and saving accounts and deterred her from acquiring a credit card. However, Husband provided Wife with many gifts and arranged expensive vacations.

         Prior to the marriage, Husband purchased a house ("the Residence") in St. Charles for $113, 000. Husband obtained a mortgage on the property, which he refinanced in 2002. Upon their marriage, the parties lived at the Residence. At that time, Husband owed $87, 700 on the mortgage. While Husband worked overseas, Wife purportedly maintained the Residence by cleaning it, mowing the lawn, and tending the property. The parties renovated a bathroom and resurfaced the driveway during the marriage. The mortgage was paid solely from Husband's Bank of America checking account. In November 2015, an appraiser valued the Residence at $115, 000. At dissolution, the balance remaining on the mortgage was $26, 833.

         Husband filed for dissolution of the marriage in May 2015. Shortly thereafter, the trial court entered apendente lite judgment awarding Wife monthly maintenance of $1600. During the dissolution proceedings, Husband asked the trial court to award Wife no maintenance. Wife requested $3600 in monthly maintenance. Husband listed his reasonable monthly expenses at approximately $3000. Wife alleged that her reasonable monthly expenses were $5115. Husband indicated that his total net income was $14, 255.36 during the months that he worked. Wife claimed no amount of regular income at dissolution. Husband acknowledged that he had significant discretionary monthly income.

         Husband procured a vocational expert to testify at trial about Wife's employment opportunities. The witness testified that Wife could obtain a low-wage position as a cashier, dishwasher, fast-food worker, housekeeper, kitchen helper, night auditor, sales clerk, server, short-order cook, or waitress, despite her limited ability to communicate in English. The witness never interviewed Wife, nor did the witness contact any potential employers to determine Wife's capability to work given her communication issues. Although the witness admitted that, at the time of trial, Wife likely was limited to low-wage positions, the witness opined that Wife could obtain employment as an accounting clerk in the future.

         The trial court entered judgment in September 2016, dissolving the marriage, dividing the parties' marital property, and awarding Wife $2600 in monthly maintenance. In its judgment, the trial court concluded that Wife had insufficient income-producing property to provide for her reasonable needs and could not meet her needs through appropriate employment. The trial court rejected Wife's claimed expenses of $5115, and determined that Wife's reasonable monthly expenses were around $4000. The trial court also found that Husband had sufficient discretionary income to pay maintenance.

         In contrast, the trial court stated that Wife had limited income at her disposal. Although Wife was unemployed, the trial court determined that "[t]here was no medical evidence produced to support a finding that Wife suffered from a condition which reduced her capacity to become employed full time." According to the trial court, however, Wife could only achieve a minimum-wage, full-time job because of her inability to speak English proficiently and her limited job training. Further, the trial court commented that Wife was "not completely settled emotionally or physically to engage in any form of employment above minimum wage and even that is speculative at this point." The trial court rejected the testimony of Husband's vocational expert, reasoning that the witness never interviewed Wife or any potential employer.

         The trial court also addressed the parties' standard of living. The trial court found that Husband provided a good standard of living throughout the marriage. The trial court reasoned that Wife did not embellish her standard of living because she lacked access to any money other than her monthly "allowance" or Husband's gifts. The trial court concluded that Wife required maintenance and that Husband had the ability to pay such an award. After considering the statutory factors, the trial court ordered Husband to pay Wife $2600 monthly in modifiable maintenance to contribute to her reasonable needs of $4000.

         Regarding the division of marital property, the trial court determined that the mortgage on the Residence was $87, 700, when the parties married; at trial, the mortgage balance was $26, 833.50. Thus, the equity accrued on the Residence during the marriage was $60, 866.50. The trial court found that the parties issued mortgage payments from Husband's Bank of America checking account, where Husband regularly deposited both his salary and his military pension. The trial court found that Husband commingled the deposits in his Bank of America checking account. Therefore, the trial court found a marital interest in the equity accrued via the mortgage payments made on the Residence. The trial court divided the $60, 866, 50 in accrued equity equally, ordering Husband to pay Wife $30, 433.25. Additionally, the trial court determined that Husband provided no direct evidence that he used only separate funds to pay for any renovations to the Residence.

         Husband then filed a motion for new trial, charging the trial court with error for improperly relying upon evidence of Wife's medical condition to determine the amount of maintenance, for failing to consider the length of marriage in awarding maintenance, and for finding that the equity accrued on the Residence was marital property. The trial court never entered an order addressing the motion for new trial. After the judgment became final, Husband appealed.

         Standard of Review

         We review a judgment dissolving a marriage under the standard established by Murphy v. Carron. 536 S.W.2d 30, 32 (Mo. banc 1976). Cureau v. Cureau, 514 S.W.3d 685, 689 (Mo. App. E.D. 2017). Accordingly, we must affirm the trial court's decision unless it is not supported by substantial evidence, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. (referencing Murphy. 536 S.W.2d at 32). We accept "as true the evidence and reasonable inferences therefrom in the light most favorable to the trial court's judgment, and disregard[] all evidence and inferences to the contrary." Landewee v. Landewee, 515 S.W.3d 691, 694 (Mo. banc 2017). Although we defer to the trial court's factual determinations, we review any pertinent issues of law de novo. Moore v. Moore, 484 S.W.3d 386, 389 (Mo. App. W.D. 2016). The burden of establishing trial-court error lies with the party challenging the divorce decree. Landewee, 515 S.W.3d at 694.

         The trial court has broad discretion in awarding maintenance and dividing marital property. Cureau, 514 S.W.3d at 689. A trial court abuses its discretion when its ruling is clearly against the logic of the circumstances then before it and is so arbitrary and unreasonable that it shocks one's sense of justice and indicates a lack of careful consideration. Id.

         Points on Appeal

         Point One claims that the trial court erroneously considered Wife's physical and emotional condition in awarding maintenance. Point Two argues that the trial court erred by failing to factor in the marriage's duration in computing maintenance. Point Three asserts that the trial court erred in granting Wife a portion of the accrued equity in the Residence.


         Husband challenges the trial court's award of maintenance to Wife and its division of marital property. Because Points One and Two both focus upon the maintenance award, we will first explain the statutory provisions regarding maintenance, and then address the substantive arguments of Points One and Two. Then we will discuss ...

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