Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County, Missouri The
Honorable Jeffrey C. Keal, Judge
Thomas N. Chapman, Presiding Judge, Mark D. Pfeiffer, Judge
and Cynthia L. Martin, Judge
CYNTHIA L. MARTIN, JUDGE
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,
and Procedural Background 
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.
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.
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.
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.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.
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
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.
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
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
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
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.
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.
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.
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
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).
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
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
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;(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.
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.
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.
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 ...