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Collins v. Collins

Court of Appeals of Missouri, Western District, Second Division

June 4, 2019

LAURA COLLINS, Respondent,
v.
MELVIN COLLINS, Appellant.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jeffrey C. Keal, Judge

          Before Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge and Cynthia L. Martin, Judge

          CYNTHIA L. MARTIN, JUDGE

         Melvin Collins ("Husband") appeals from a judgment entered in the Circuit Court of Jackson County dissolving his marriage to Laura Collins ("Wife"). Husband argues that the trial court erred in (1) granting his attorney's motion to withdraw; (2) denying his request for a continuance after his attorney's withdrawal; (3) entering a void nunc pro tunc judgment; (4) dividing marital property unfairly; and (5) awarding Wife attorneys' fees. Finding no error, we affirm.

         Factual and Procedural Background [1]

         Husband and Wife were married June 2, 2007. Wife filed for dissolution of the marriage on November 29, 2016. Husband filed an answer and a counter-petition for dissolution of marriage on December 21, 2016.

         During discovery, the trial court ordered Husband to permit Wife's appraiser to conduct an appraisal of the marital home on June 19, 2017. On the court ordered date, Husband denied Wife's appraiser entry into the marital home. The trial court sanctioned Husband by ordering him to pay Wife $1, 080 in attorney's fees and $100 for an appraisal fee. The trial date was rescheduled from July 13, 2017 to July 21, 2017 to allow time for Wife's appraisal to be conducted.

         On July 12, 2017, Husband's attorney filed a motion to withdraw. The motion attached Husband's affidavit which stated: "Comes now the Respondent, Melvin Collins and hereby consents to the withdrawal of my attorney of record, Troy Leavitt, in the above captioned case." The trial court denied the motion to withdraw on July 18, 2017 because it failed to set forth Husband's complete address as required by local rule. The docket entry denying the motion to withdraw noted that "[n]o continuances will be granted and the trial will take place on July 21, 2017." On July 20, 2017, Husband's attorney filed a corrected motion to withdraw which again attached Husband's affidavit consenting to withdrawal. The trial court granted the motion to withdraw that same day.[2]

         On July 21, 2017, Husband appeared for trial without counsel. The trial court confirmed on the record that Husband had consented to the withdrawal of his attorney.[3]Husband then relied on his attorney's withdrawal to orally request a continuance. Husband's oral request for a continuance was denied. Trial proceeded with Wife presenting evidence during her case in chief, and Husband cross-examining Wife's witnesses pro se. On several occasions, Husband complained that he was prejudiced by the lack of counsel, and on each occasion the trial court advised Husband that the trial would continue as scheduled. Husband ultimately claimed that he was experiencing a medical emergency, which forced the trial court to suspend the trial so Husband could seek medical attention. The suspended trial proceedings were scheduled to resume on July 25, 2017.

         On July 25, 2017, Husband appeared for the resumed trial proceedings with the same attorney who had been permitted to withdraw. That attorney re-entered his appearance as Husband's attorney. The trial continued without further incident. The trial court took the case under advisement at the close of the evidence.

         The trial court entered its judgment dissolving the parties' marriage and dividing the parties' assets and liabilities on October 20, 2017 ("Judgment"). Relevant to this appeal, the trial court found that: (i) $152, 960.06 held in Husband's thrift saving plan ("TSP") was marital property, while the remaining balance was non-marital property; (ii) $425.96 of "a monthly benefit" Husband was due to receive from his Federal Employee Retirement System account ("FERS") was marital property, while the remainder was non-marital property; (iii) the proceeds of Husband's workers' compensation claim were marital property; (iv) the marital home had a value of $190, 000 and was subject to a deed of trust in the amount of $58, 473; and (v) a townhouse that belonged to Wife before the marriage remained Wife's non-marital property, though $19, 145 of the equity in the townhouse was marital property.

         The Judgment (i) ordered Husband to pay $5, 000 in Wife's attorneys' fees; (ii) ordered Husband to pay $2, 350 to equalize the division of the parties' bank accounts; (iii) ordered that the marital home and the debt against the home be set aside to Husband; (iv) ordered that $76, 480.03, representing half of the marital portion of Husband's FERS account, be awarded to Wife; (v) ordered that Husband pay Wife $69, 210 to "fairly and equitably divide the marital assets;" and (vi) otherwise divided the remaining non-marital and marital property according to exhibits attached to the Judgment. The Judgment's reference to the FERS account was mistaken, and should have been a reference to the TSP account. And as a result, the Judgment failed to address the marital portion of Husband's monthly retirement benefit from the FERS account.

         Wife filed a motion to amend the Judgment on October 24, 2017. Wife's motion pointed out clerical errors in the Judgment, and also noted that the Judgment mistakenly referred to the award to Wife of $76, 480.03 as half of the FERS account and failed to address the monthly retirement benefit from the FERS account. Though Wife's motion was titled "motion to amend the judgment," the body of the motion alleged that the motion was being filed pursuant to "Rule 74.069(a)," a rule that does not exist. In a subsequent pleading, Wife characterized her motion to amend the Judgment as a Rule 74.06(a) motion to correct "clerical errors."

         On November 13, 2017, the trial court entered an amended judgment ("Amended Judgment"). Among other things, the Amended Judgment changed the reference to the award of $76, 480.03 to Wife to reflect that it represented one-half of Husband's TSP account. The Amended Judgment also added language to address the FERS account, and awarded Wife $212.98 a month, representing one-half of Husband's monthly benefit. The Amended Judgment made no reference to Rule 74.06(a) and did not purport to be a nunc pro tunc judgment.

         On November 27, 2017, Husband's attorney once again filed a motion to withdraw as Husband's counsel. The motion was granted on December 1, 2017.

         On December 13, 2017, Husband filed a pro se motion to vacate, reopen, or correct the Amended Judgment pursuant to Rule 75.01. In his motion, Husband noted that the Amended Judgment was a new judgment for all purposes pursuant to Rule 78.07(d). Husband's motion was denied on January 3, 2018.

         On May 2, 2018, this court sustained Husband's motion for leave to file a notice of appeal out of time. Husband filed this appeal on May 8, 2018.

         Analysis

         Husband raises five points on appeal. First, Husband argues that the trial court erred in granting his attorney's motion to withdraw because the motion did not comply with a local court rule. Second, Husband argues that the trial court erred in denying his oral request for a continuance on the first day of trial. Third, Husband argues that the Amended Judgment was a void nunc pro tunc judgment. Fourth, Husband argues that the trial court erred in its division of property. Fifth, Husband argues that the trial court erred by awarding Wife attorneys' fees.

         "This court will affirm the trial court's [judgment] unless it is not supported by substantial evidence, is against the weight of the evidence, or erroneously declares or applies the law." Ritter v. Ritter, 920 S.W.2d 151, 159-60 (Mo. App. W.D. 1996) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976)). "This court reviews the evidence in the light most favorable to the dissolution decree, disregarding contrary evidence, and defers to the trial court even if the evidence could support a different conclusion." Id. "We defer to the trial court's credibility determinations and assume all factual issues were resolved in favor of the judgment entered." Pollard v. Pollard, 401 S.W.3d 506, 510 (Mo. App. W.D. 2013) (quotations omitted).

         We review for an abuse of discretion the trial court's grant of an attorney's motion to withdraw, denial of a motion for continuance, entry of an amended judgment, division and characterization of property, and award of attorneys' fees. Karolat v. Karolat, 151 S.W.3d 852, 858 (Mo. App. W.D. 2004) (grant of motion to withdraw); Foster v. Foster, 149 S.W.3d 575, 578-79 (Mo. App. W.D. 2004) (denial of continuance); Jessen v. Jessen, 450 S.W.3d 425, 432 (Mo. App. W.D. 2014) (entry of an amended judgment); Barth v. Barth, 372 S.W.3d 496, 503 (Mo. App. W.D. 2012) (division of property and award of attorneys' fees).

         Point One

         In Husband's first point on appeal, he argues that the trial court erred in granting his attorney's motion to withdraw because the motion did not comply with 16th Judicial Circuit Rule 21.4. "Whether to allow trial counsel to withdraw is within the sound discretion of the trial court." Nance v. Nance, 880 S.W.2d 341, 345 (Mo. App. E.D. 1994). "Although that discretion is judicial in nature and reviewable on appeal, every intendment is in favor of the trial court's ruling." Karolat, 151 S.W.3d at 858.

         16th Judicial Circuit Rule 21.4 permits an attorney to withdraw from a civil case with leave from the court if the attorney (1) complies with Supreme Court Rule 4-1.16;[4](2) files a written motion containing the full address of the client setting forth the specific grounds for the relief sought; and (3) gives the client "written notification of the motion to withdraw" and "reasonable time to retain . . . another attorney." If the motion to withdraw is accompanied by the "the written consent of the client," 16th Judicial Circuit Rule 21.4(2) permits an attorney to forgo the requirements of serving notice of the motion on the client and holding a hearing.

         Husband argues his attorney's motion to withdraw did not comply with the aforesaid local rule because Husband did not consent to the motion. Husband claims his consent to the withdrawal applied only to the motion to withdraw filed on July 12, 2017, and not to the corrected motion to withdraw filed on July 20, 2017. Husband thus argues that the motion to withdraw filed on July 20, 2017 failed to satisfy the requirements of 16th Judicial Circuit Rule 21.4 because he did not receive notice of the motion. Husband relies on Bledsoe v. Bledsoe, 244 S.W.3d 204 (Mo. App. E.D. 2008) to argue that as a result, the trial court committed reversible error in granting the motion to withdraw. Husband's argument is without merit, and his reliance on Bledsoe is misplaced.

         In Bledsoe, the Eastern District found that it was an abuse of discretion to grant husband's attorney's motion to withdraw when the husband did not consent to withdrawal, and when the motion was filed and granted immediately before trial commenced. 244 S.W.3d at 205-06. The Eastern District found that the husband was prejudiced because he had no opportunity to employ other counsel. Id.

         Here, in contrast, Husband's attorney first filed a motion to withdraw on July 12, 2017, and that motion was accompanied by Husband's written consent to withdrawal. The same consent was attached to counsel's corrected motion to withdraw filed on July 20, 2017. Though Husband argues that his consent to withdrawal applied only to the motion filed on July 12, 2017, he argues no reasoned basis for concluding that his consent to withdrawal was withdrawn between July 12, 2017, and July 20, 2017. On its face, the consent is unequivocal, and is not temporally limited. And, when Husband appeared for trial on July 21, 2017, he was examined by the trial court to ...


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