THOMAS JEROME BECHTOLD v. ROXANNE BECHTOLD , 453 S.W.3d 813 ( 2014 )

THOMAS JEROME BECHTOLD, )
)
Respondent, )
)
vs. ) No. SD33219
)
ROXANNE BECHTOLD, ) FILED: November 18, 2014
)
Appellant. )
APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY
Honorable David G. Warren, Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS
The trial court dissolved the Bechtolds’ marriage, divided their assets and
debts, entered a parenting plan that gave Roxanne1 most of the parenting time, and
awarded child support and maintenance.
Although Roxanne raises six points on appeal, two are not preserved for
appellate review. We deny three and grant one of her other points.
1
We use first names for convenience, as both parties did in their briefs. Rule references are to
Missouri Court Rules (2013), unless otherwise indicated.
Points II & V
In each of these points, Roxanne asserts that the judgment omits required
findings. Both complaints are waived because neither was raised in a motion to
amend the judgment as required by Rule 78.07(c). “In all cases, allegations of error
relating to the form or language of the judgment, including the failure to make
statutorily required findings, must be raised in a motion to amend the judgment in
order to be preserved for appellate review.” Id. Thus, we need not and do not reach
these points. See, e.g., Jeffus v. Jeffus, 375 S.W.3d 862, 868-69 (Mo.App. 2012);
Crow v. Crow, 300 S.W.3d 561, 565-66 (Mo.App. 2009).
Points III, IV, & VI
These points challenge the child support award, the maintenance award, and
classification of a ring. In each instance, Roxanne conflates all three Murphy v.
Carron2 theories of error into a single point even though “each Murphy ground is
a separate, distinct legal claim” which “is proved differently from the others and is
subject to different principles and procedures of appellate review.” Smith v. Great
American Assur. Co., 436 S.W.3d 700, 703-04 & n.3 (Mo.App. 2014); see also
Ayler v. Director of Revenue, 439 S.W.3d 250, 255-56 (Mo.App. 2014). Such
three-way points generally preserve nothing for appellate review and ordinarily are
subject to dismissal. Ayler, 439 S.W.3d at 255.3
2
536 S.W.2d 30 (Mo. banc 1976). Under Murphy, judgment in a court-tried case will be
affirmed on appeal unless no substantial evidence supports it, it is against the weight of the
evidence, or it erroneously declares or applies the law. Id. at 32 (interpreting former Rule
73.01(c), now Rule 84.13(d)).
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Points II and V also suffer this defect.
2
Moreover, Roxanne’s assertions of “no substantial evidence” and “against the
weight of the evidence” skip essential steps, robbing her arguments of any persuasive
or analytical value. Houston v. Crider, 317 S.W.3d 178, 186-89 (Mo.App. 2010).4
Rather, she mainly cites her own evidence and argues that the trial court could have
ruled each issue more favorably to her, which of itself is no basis for reversal and
ignores our standard of review. We presume that all evidence was considered by the
trial court and we will not reweigh that evidence, even if doing so could yield a
different conclusion. Stoller v. Stoller, 330 S.W.3d 814, 818 (Mo.App. 2011).
For all these reasons, Points III, IV, and VI fail.
4
Houston recognizes that a “no substantial evidence” challenge involves three steps:
(1) identify a challenged factual proposition, the existence of which is necessary
to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of
that proposition; and,
(3) demonstrate why that favorable evidence, when considered along with the
reasonable inferences drawn from that evidence, does not have probative force
upon the proposition such that the trier of fact could not reasonably decide the
existence of the proposition.
317 S.W.3d at 186-87. By contrast, an “against the weight” challenge involves four steps:
(1) identify a challenged factual proposition, the existence of which is necessary
to sustain the judgment;
(2) identify all of the favorable evidence in the record supporting the existence of
that proposition;
(3) identify the evidence in the record contrary to the belief of that proposition,
resolving all conflicts in testimony in accordance with the trial court’s credibility
determinations, whether explicit or implicit; and,
(4) demonstrate why the favorable evidence, along with the reasonable inferences
drawn from that evidence, is so lacking in probative value, when considered in the
context of the totality of the evidence, that it fails to induce belief in that
proposition.
Id. at 187. Roxanne “trip[s] on the second step of each challenge – identification of the evidence
in the record favorable to the judgment – and, thus, doom[s her] ability to satisfy the last step of
each challenge.” Id. at 187-88.
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Point I
The trial court ordered that Roxanne’s award of monthly maintenance would
automatically and permanently terminate if she cohabits. To quote the judgment,
Roxanne’s maintenance “shall terminate upon … [her] cohabitation. [She] shall
send written notice to [Thomas], the Court, and copies to all attorneys involved in
these proceedings shall she decide to cohabitate. Thereupon, maintenance shall
immediately cease permanently ….”
Roxanne claims that this was error. Thomas agrees. They are correct because
“the economic implications of cohabitation for the spouse receiving maintenance
must be addressed before the maintenance award may be modified, suspended or
terminated.” Lombardo v. Lombardo, 992 S.W.2d 919, 923 (Mo.App. 1999).
We grant Point I.
Conclusion
We reverse the judgment and remand with directions to remove provisions
automatically terminating maintenance upon cohabitation. We affirm the judgment
in all other respects.
DANIEL E. SCOTT, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
WILLIAM W. FRANCIS, JR., C.J./P.J. – CONCURS
4