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Lollar v. Lollar

Court of Appeals of Missouri, Eastern District, Second Division

May 7, 2019

CHRISTINE ANN LOLLAR, Appellant,
v.
RICHARD DWAIN LOLLAR, Respondent.

          Appeal from the Circuit Court of St. Louis County 16SL-DR03988 Honorable Thea Anne Sherry

          OPINION

          HONORABLE MARY K. HOFF

         Christine Ann Lollar ("Wife") appeals from the "Amended Judgment/Decree of Dissolution of Marriage" ("Amended Judgment") of the trial court claiming that the trial court erred with respect to its order for child support and in its distribution of marital property. We affirm in part, reverse in part, and remand.

         Factual and Procedural Background

         Wife and Richard Dwain Lollar ("Husband") married on April 25, 2005, and one child ("Child") was born of the marriage who was eleven years old at the time of trial. Husband and Wife separated on December 9, 2015 after Husband was incarcerated while facing charges of statutory sodomy in the first degree, child molestation in the first degree, and statutory rape in the first degree involving Child. On July 15, 2016, Wife filed a Petition for Dissolution of Marriage ("Petition"), subsequently amended on July 12, 2017, alleging, inter alia, that her marriage with Husband was irretrievably broken, that she should be granted sole legal and physical custody of Child and child support, that Child's name should be changed, and requesting that the trial court equitably set aside and divide the parties' marital property.

         A guardian ad litem ("GAL") was appointed to represent Child's interests, and a trial commenced on October 18, 2017 before a Family Court Commissioner ("Commissioner"). At trial, Wife testified that after Husband allegedly abused Child, she sought and obtained against Husband a full order of child protection, dated December 28, 2015 in Cause No. 15SL-PN05238, and a full order of adult protection, dated December 28, 2015 in Cause No. 15SL-PN05237 (collectively referred to as "Orders of Protection"). When Wife offered the Orders of Protection into evidence, Husband stipulated to their existence and contents, but he made no admission of guilt as to the allegations contained therein, which purportedly included claims of physical abuse against Wife and sexual abuse against Child.[1] The GAL informed the Commissioner that the Orders of Protection mandated that Husband pay $1, 500 per month in child support to Wife.

         Wife acknowledged that there were times during the marriage in which Husband asked her to obtain employment due to the family's financial circumstances, but she believed it was more important to stay at home with Child. Wife testified that now, however, she works as an administrative assistant and makes $22, 000 per year. Wife testified that she did not believe that Husband was receiving an income given his incarceration, and therefore waived maintenance and the request for child support she initially made in her Petition. As for the division of property, Wife testified that she sought to retain all property in her possession, including the parties' television, computer, dishes, and kitchen items; to remain responsible for all debts in her name; to be granted the parties' 2015 Chevrolet Cruze and be responsible for the loan, licenses, and other fees associated with the vehicle; and to receive 100% of Husband's 401(k) retirement account, which he had obtained through his employment with Lanter Delivery. Wife further requested that Husband retain all property in his possession and remain responsible for all debts in his name while receiving no part of his 401(k) account. Husband stipulated to this property division except as to Wife's request for 100% of his 401(k). Beyond Wife's testimony that she believed Husband's 401(k) contained less than $5, 000, no evidence was produced as to its actual value.

         Wife further testified that after Husband's incarceration, she used the proceeds from his last paychecks from his employer as well as the parties' tax refund to "pa[y] all the [credit card] debt that was in [her] name" as well as to pay bills, utilities at the family's residence, and property taxes on Wife's vehicle and Husband's Ford Mustang. Wife testified that she thereafter voluntarily surrendered Husband's vehicle to the credit union and that she moved out of the parties' residence, giving Husband's personal items, motorcycle, and clothes to Husband's sister.

         On November 17, 2017, the Commissioner entered its "Judgment/Decree of Dissolution," which the trial court adopted as its own judgment on December 29, 2017. Therein, the trial court dissolved the parties' marriage, awarded Wife full legal and physical custody of Child, and divided the marital property. The trial court awarded Wife the 2015 Chevrolet Cruze; all personal property in her possession; and responsibility for credit card debts in her name along with 50% of outstanding bills and taxes amounting to a total debt of approximately $11, 000. The trial court awarded Husband all personal property in his possession; 100% of his 401(k) account (no value listed); and responsibility for credit card debts in his name as well as 50% of outstanding bills and taxes amounting to a total debt of approximately $12, 800. The trial court awarded "$0.00 per month" in child support retroactive to July 15, 2016, the date Wife filed her initial Petition, and "supersede[d] the previous [child support] order in 15SL-PN05237." The trial court also abated the previous child support order "from December 11, 2015 up to the date of filing [of] the Petition," July 15, 2016. Finally, the trial court denied Wife's request for a name change for Child.

         On January 16, 2018, Wife filed a motion for new trial or, in the alternative, to amend the judgment alleging that the trial court erred in entering a child support award with a start date predating the filing of the Petition, erred in failing to equitably divide the marital property, and erred in failing to grant a name change for Child. On February 1, 2018, the trial court entered its Amended Judgment, which granted a name change for Child. On February 28, 2018, the trial court denied Wife's motion for new trial on the remaining grounds. Wife's timely appeal follows.

         Standard of Review

         We review a dissolution judgment under the same standard applicable to any other court-tried case. Finch v. Finch, 442 S.W.3d 209, 214 (Mo. App. E.D. 2014). Thus, we will affirm the judgment "unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law." Id. (quoting Foraker v. Foraker, 133 S.W.3d 84, 92 (Mo. App. W.D. 2004)); Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view the evidence and all reasonable inferences that can be drawn in the light most favorable to the judgment; we disregard all other evidence and contrary inferences. Id.

         "The trial court has broad discretion when dividing marital property and awarding child support." Hurst v. Hurst, 553 S.W.3d 853, 857 (Mo. App. E.D. 2018). The trial court abuses this discretion "only when its ruling is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of careful consideration." Id. (quoting Coleman v. Coleman, 318 S.W.3d 715, 720 (Mo. App. E.D. 2010)) (internal quotations omitted).

         Child ...


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