Floyd R. Finch v. Joann K. Finch , 442 S.W.3d 209 ( 2014 )

In the
Missouri Court of Appeals
Western District

FLOYD R. FINCH, 
 WD76698
Appellant,  OPINION FILED:
v. 
 SEPTEMBER 16, 2014
JOANN K. FINCH, 

Respondent. 


Appeal from the Circuit Court of Jackson County, Missouri
The Honorable James F. Kanatzar, Judge
Before Division Two: Victor C. Howard P.J., James E. Welsh, Anthony Rex Gabbert JJ.
Floyd R. Finch (“Husband”) appeals the circuit court‟s judgment dissolving Husband‟s
marriage to Joann K. Finch (“Wife”). Husband raises eight points on appeal. Husband argues
that the court abused its discretion in (1) awarding Wife 54% of the net marital assets, (2)
awarding Wife $4,050 in monthly maintenance, (3) finding that Husband was under-employed
and in attributing monthly income of $26,935 to him, (4) finding that Husband had failed to
account for $100,000 in loan proceeds, (5) failing to credit Husband for the amount of health
insurance premiums he was ordered to pay for his minor children in the court‟s Form 14, (6)
requiring Husband to pay retroactive child support, (7) failing to address Husband‟s post-trial
petition and motion, and (8) precluding Husband from cross-examining Wife with leading
questions as an adverse witness and preventing him from offering his own testimony on Wife‟s
failures as a homemaker. We affirm.
Factual Background
The parties were married on August 17, 1974. Shortly after they were married, Husband
and Wife moved to Boston so that Husband could attend Harvard Law School. Wife worked to
provide for them while Husband was in school. Husband worked during the summer to help
with the finances.
Upon graduation from law school, Husband accepted a federal clerkship where he
clerked for two years. After his clerkship was finished, Husband worked for a large law firm in
Kansas City. Husband worked at this large law firm for 29 years, working his way up to a senior
partner. In 2009, Husband and another former law partner left the law firm and started their own
law partnership called Finch & Campbell. In 2012, four months before the marriage dissolution
trial began, Husband left the partnership. Instead of looking for employment elsewhere,
Husband decided to work for himself as a solo practitioner.
Husband and Wife had four children. Two of their four children are now emancipated.
Shortly after Husband graduated law school, Wife became pregnant with their first child.
Husband and Wife decided it would be best if Wife stayed home with the child.
Wife‟s highest level of education was completion of some hours as a junior in college.
Wife held some part-time employment during the marriage, including work as a teacher‟s aide
and part-time library clerk, which helped offset their children‟s private school fees. Her last
employment was in 2005.
2
Throughout the marriage, Wife suffered significant health problems. In the year and a
half before the trial, Wife had been hospitalized on four separate occasions. Wife suffered a
heart attack and stroke in 2005. Wife has also suffered from periods of severe depression.
Over the course of their marriage, Husband and Wife accumulated quite a large marital
estate, including a 7,000 square foot marital residence, four other properties, and generous
retirement accounts.
On February 13, 2011, Husband told Wife that he had found someone he thought loved
him more than anyone and he asked for a divorce. Husband met his paramour online and
testified that she was the only person outside their marriage that he had sexual relations with
during their marriage. Shortly before trial, in the summer of 2012, Husband traveled with his
paramour for fifteen days to California and Oregon. Husband was living with his paramour at
the time of trial.
The trial began on December 3, 2012 and extended over three days. Husband called Wife
as his first witness and his direct examination of her lasted a day and a half. Husband‟s evidence
was predominately devoted to his complaints regarding Wife‟s housekeeping. Husband
requested a disproportionate division of the marital property in his favor due to his complaints of
Wife‟s lack of housekeeping.
The trial court entered a Judgment Decree of Dissolution of Marriage on February 25,
2013. On March 14, 2013, Wife filed her Motion to Reconsider and for Amended Decree of
Dissolution of Marriage. On June 7, 2013, the court entered its Amended Judgment of Decree of
Dissolution of Marriage. The Amended Judgment found that Husband had the ability to earn
approximately $26,935 per month, based upon his earnings history from 2007 to 2011. The
judgment also ordered Husband to pay Wife child support of $2,409 per month commencing on
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January 1, 2013. Husband was additionally ordered to pay Wife as periodic maintenance the
sum of $4,050 per month commencing March 1, 2013. The trial court‟s division of martial
property and debt resulted in Husband receiving a net award of 46% of the marital estate and
Wife receiving a net award of 54%. Husband appeals.
Standard of Review
“This Court reviews a judgment in a dissolution proceeding under the same standard
applicable to any other court-tried case.” Hart v. Hart, 210 S.W.3d 480, 484 (Mo. App. 2007).
“The judgment will be affirmed unless it is not supported by substantial evidence, it is against
the weight of the evidence, or it erroneously declares or applies the law.” Foraker v. Foraker,
133 S.W.3d 84, 92 (Mo. App. 2004) (citing Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc
1976)). “In making these determinations, this Court views the evidence and all reasonable
inferences drawn in the light most favorable to the judgment and disregards all other evidence
and contrary inferences.” Hart, 210 S.W.3d at 484.
Wife’s Motion to Strike
Before addressing Husband‟s eight points on appeal, we first address Wife‟s motion to
strike that was taken with this case because it directly affects several of Husband‟s points. In
Wife‟s motion, she argues that a significant portion of Husband‟s appendix to his brief and legal
files were filed or created by Husband after the trial adjourned and should therefore be stricken
from Husband‟s appeal.
“Rule 78.05 authorizes affidavits, depositions, and oral testimony in connection with after
trial motions.” Powell v. State Farm Mut. Auto. Ins. Co., 173 S.W.3d 685, 689 (Mo. App. 2005).
“Where the issue raised in the after trial motion requires resolution of factual matters not based
on facts appearing in the record, the rule authorizes proof by any of the listed methods.” Id.
4
Here, none of Husband‟s claims for a new trial require the resolution of factual matters not based
on facts appearing in the record such that additional evidence is needed. Instead, Husband wants
the trial court, and now this Court, to consider evidence that he failed to present at trial.
However, “[e]xhibits attached to motions filed with the trial court are not evidence and are not
self-proving.” Id. See also Dawson v. Dawson, 366 S.W.3d 107, 115 n.11 (Mo. App. 2012)
(finding “Mother‟s Exhibit A to her post-trial motion was not admitted into evidence, and could
not have been considered by the trial court.”); In re Marriage of Thomas, 21 S.W.3d 168, 178
n.11 (Mo. App. 2000) (finding that for the appellate court to treat Exhibit A to Husband‟s post
trial motion “as evidence on appeal without having offered it would deprive Wife of her
opportunity to present objections to the exhibit and challenge its admission into evidence.”).
Therefore, Wife‟s motion to strike portions of Husband‟s legal file and appendix referencing the
exhibits attached to Husband‟s post trial motion is granted. Any reference to these stricken
exhibits in Husband‟s points will not be considered in deciding those points. However, we do
not strike points II, III, and V of Husband‟s brief as Wife‟s motion to strike seeks.
Division of Marital Property
In Husband‟s first point on appeal, he argues that the trial court abused its discretion in
awarding Wife 54% of the net marital assets in its Amended Judgment because (1) Wife‟s
interrogatory answers waived any claim for marital misconduct, (2) Wife requested an equal
division of marital assets at trial, and (3) Wife‟s post-trial claim for marital misconduct justifying
an unequal division of marital assets did not meet the standard imposed by Missouri law in that
there was no evidence that Husband engaged in marital misconduct that imposed a greater
burden on Wife under Missouri case law. Husband contends that the property division was not
5
supported by substantial evidence, is against the weight of the evidence, and it erroneously
applies the law and standards of § 452.330, RSMo 2000.1 We find no abuse of discretion.
A trial court has broad discretion in dividing marital property, and “this Court will reverse
only if the division is so unduly weighted in favor of one party that it constitutes an abuse of
discretion.” Hart, 210 S.W.3d at 484. A trial court abuses its discretion only where the division
of property 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.” Lagermann v.
Lagermann, 144 S.W.3d 888, 890 (Mo. App. 2004) (internal quotations omitted).
Section 452.330.1 provides that when dividing marital property a trial court should
consider all relevant factors, including: (1) The economic circumstances of each spouse at the
time the division of property is to become effective, including the desirability of awarding the
family home or the right to live therein for reasonable periods to the spouse having custody of
any children; (2) The contribution of each spouse to the acquisition of the marital property,
including the contribution of a spouse as homemaker; (3) The value of the non-marital property
set apart to each spouse; (4) The conduct of the parties during the marriage; and (5) Custodial
arrangements for minor children.
“The five statutory factors of § 452.330.1 are not exclusive, and there is no formula
determining the weight to be given to the factors in dividing the marital property.” Hart, 210
S.W.3d at 485. “The division of property does not necessarily need to be equal, but it must be
fair and equitable under the circumstances of the case.” Id. “The division of property is
1
All statutory references are to the Missouri Revised Statutes 2000 updated through the 2013 cumulative
supplement unless otherwise noted.
6
presumed to be correct, and the party challenging the division has the burden of overcoming the
presumption.” McNair v. McNair, 987 S.W.2d 4, 6 (Mo. App. 1998).
Husband first argues that Wife never claimed marital misconduct until her post-trial
motion and thereby waived the claim. This argument, however, disregards § 452.330.1 wherein
it states that when dividing marital property a trial court should consider all relevant factors,
including “[t]he conduct of the parties during the marriage.” Nowhere in the statute does it
require a spouse to claim misconduct or such claim is waived. Instead, the statute states that the
trial court should consider, among other factors, marital misconduct.
Husband next argues that his extra-marital affair only started one month before separation
and that sexual misconduct alone is not sufficient to distribute marital assets disproportionately.
Husband further argues that Wife failed to prove how his sexual misconduct placed an extra
burden on her. The court found, however, not only sexual misconduct by Husband but also
“financial misconduct in cohabitating with his paramour and financially supporting the
paramour; financial misconduct in controlling the finances of the parties before the separation,”
as well as controlling finances post-separation, and hiding and secreting marital assets.
Furthermore, there is substantial evidence on the record to support the court‟s finding of sexual
and financial misconduct. First, Husband testified that he had sexual relations with his paramour
and that he was currently living with her. Second, Husband also testified that he went on a
fifteen day trip to California and Oregon with his paramour. Third, Wife testified that Husband
was financially controlling. Wife rarely wore makeup or got a hair cut because Husband liked
her the way she was and did not see the expense for such things as necessary. After all, Husband
cut his own hair for roughly forty years. Additionally, Husband was in sole possession of two
lines of credit secured by two properties. Finally, when Wife opened a bank account in her name
7
and deposited $400 given to her by her mother, Husband demanded to be joint owner of the
account and know the source of the funds. 2
Moreover, the court found that the extra-marital affair precipitated the downfall of the
marital relationship. Combining all of these findings, it supports a disproportionate distribution
of marital property, as they amounted to additional burdens on Wife.
Despite Husband‟s sexual and financial misconduct, Husband argues that Wife‟s lack of
housekeeping effort throughout the marriage should be marital misconduct on Wife‟s part and
justifies a disproportionate property division in his favor. According to Husband, Wife‟s lack of
housekeeping effort worsened after she suffered from a heart attack and stroke. It should come
as no surprise that Husband cites no case law to support this appalling argument. Nevertheless,
the record reflects that other factors besides Wife‟s alleged lack of housekeeping effort played a
role in the marital residence‟s clutter and messiness. Possibly foremost of the factors was
Husband‟s recycling effort. Husband stored recycling materials in the home, on the porch, in the
garage, and in the two sheds located on the property. Additional contributing factors include the
size of the residence (7,000 square feet), Wife‟s elderly parents and ill brother living with them
for some time, raising four children, having five pets, and Wife‟s continual decline of health.
Furthermore, the record reflects that when Wife asked Husband for help in cleaning the inside of
the residence the Husband replied that the inside of the house was not his responsibility.
Therefore, in considering Husband‟s sexual and financial misconduct during the marriage
and the other factors in § 452.330.1, the court did not abuse its discretion in awarding 54% of the
martial property to Wife. Point one is denied.
2
To further illustrate Husband‟s financial control, at one point at trial, Husband suggested that he be
awarded all of the assets and he would see to it that Wife would be taken care of after the divorce.
8
Spousal Maintenance
In Husband‟s second point on appeal, he argues that the trial court abused its discretion
and misapplied the law in awarding Wife $4,050 in monthly maintenance in its Amended
Judgment because (1) Wife failed to establish the amount of income she can earn on the
$1,602,005 awarded to her in liquid individual retirement accounts in addition to other income-
producing assets, (2) Wife failed to establish the amount of investment income she could
reasonably anticipate on a smaller award of marital property that could also meet her reasonable
needs, and (3) there are no extraordinary circumstances in this case that should require Husband
to deplete martial assets awarded to him in order to pay maintenance. Husband contends that the
maintenance award is not supported by substantial evidence, is against the weight of the
evidence, and it erroneously applies the law and standards of § 452.335. We find no abuse of
discretion.
We review the trial court‟s decision on maintenance for an abuse of discretion. Schuh v.
Schuh, 271 S.W.3d 35, 37 (Mo. App. 2008). “An abuse of discretion will be found only where
the award is „clearly against the logic of the circumstances then before the court and is so
arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful
consideration[.]‟” Sweet v. Sweet, 154 S.W.3d 499, 504 (Mo. App. 2005) (quoting Goodin v.
Goodin, 5 S.W.3d 213, 216 (Mo. App. 1999)).
The trial court applies the factors enumerated in Section 452.335.2, RSMo 2000 to
determine the amount of maintenance, if any. Hammer v. Hammer, 139 S.W.3d 239, 241 (Mo.
App. 2004). In applying these factors, the trial court is given broad discretion and must balance
the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to
pay. Id. Further, “the court is not required [in the absence of a request for specific findings] to
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announce for the record the significance of and the weight that it gave to each factor in
determining its award of maintenance.” Id. (citations omitted).
Husband argues that the court should have imputed income from Wife‟s IRA and
retirement accounts, which were awarded to her in the division of marital property, in calculating
maintenance. In support of his argument, Husband relies on Hill v. Hill, 53 S.W.3d 114 (Mo.
banc 2001) and § 452.335. We disagree.
Neither Hill nor § 452.335 mandates that trial court‟s must impute income from IRA and
retirement accounts in calculating maintenance. Instead, Hill found quite the opposite. In Hill,
the court stated that any cases that require, in every case, imputing income from IRA and
retirement accounts should not be followed. HiIl, 53 S.W.3d at 116. The court further held that
a trial court may impute income from IRA and retirement accounts after considering such factors
as: “the cost to convert the account into cash, the age of the parties, their intent as to
investment/consumption/retirement, the relative division of marital property and marital debts,
and any equitable adjustment for reasonably certain taxes and penalties.” Id. In deciding
whether to impute income from these accounts, trial courts are given broad discretion and
“appellate courts do not interfere, absent abuse of discretion.” Id.3
Furthermore, § 452.335.1 requires that the court consider whether the spouse seeking
maintenance “[l]acks sufficient property, including marital property apportioned to him, to
provide for his reasonable needs…and is unable to support himself through appropriate
employment[.]” Nowhere in the statute does it state, nor does the Hill case interpret the statute
3
Hill found that the trial court abused its discretion not because it failed to impute income from the IRA and
retirement accounts. Instead, the Missouri Supreme Court found that the trial court abused its discretion because it
“valued the retirement assets—for purposes of division of marital property—at their „cash‟ after tax, after penalty
value, which was 45% of their true value at the date of dissolution. The judgment cannot be sustained because it
values the retirement assets as cash, yet refuses to impute any significant income from them.” Id. at 116-17.
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to mean, that the trial court must impute income from IRA and retirement accounts in calculating
the need and amount of maintenance as Husband argues.
Additionally, the record reflects that the court considered the factors enumerated in Hill
and found that Wife‟s IRA accounts are not readily available to her because she is not yet fifty-
nine and a half years old. As a result, the court found that Wife would be subject to various
penalties and taxes if withdrawals were made from those accounts. Therefore, the court did not
impute any income to Wife from her IRA accounts.
The record further reflects Wife‟s need of maintenance under § 452.335.1. First, Wife
was not employed outside the home for a majority of their thirty-eight year marriage. Second,
even though Wife has completed some college courses, Wife lacks education and training which
affect her ability to be employed. Finally, and most notably, Wife suffers from numerous
physical ailments and memory difficulty which would prohibit her ability to be employed on
either a part-time or full-time basis.
Therefore, the trial court did not abuse its discretion by not imputing income from Wife‟s
IRA accounts as these accounts were not readily available to her, and neither the Hill case nor §
452.335 require the court to impute such income. Furthermore, as the record reflects Wife‟s need
of maintenance because of her lack of work experience, training, and education, in addition to
her poor physical and mental health, the trial court did not abuse its discretion in awarding Wife
maintenance. Point two is denied.
Husband’s Monthly Gross Income
In Husband‟s third point on appeal, he argues that the trial court abused its discretion and
misapplied the law in finding that he was “under-employed and has positioned himself as such”
and in attributing monthly income of $26,935 to him in its Amended Judgment based on his
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gross income from 2007 to 2011 because there was no evidence that Husband was trying to
evade his responsibility to support his family. Husband contends that the evidence established
that his law partnership had dissolved involuntarily in August 2012, his 2012 income was
substantially reduced due to an involuntary reduction in his legal business, and his just-opened
solo law practice was unprofitable. We find no abuse of discretion.
We first note that Husband intentionally omitted from the transcript the trial testimony of
one of his former employees at the now dissolved law firm of Finch & Campbell. Where
employee‟s testimony should appear, the transcript states in bold lettering: “The direct
examination of [employee] by Mr. Finch and the cross-examination by [Wife‟s counsel]
occurring from 3:13 pm to 3:42 pm are omitted from this appeal transcript at the instruction of
[Husband].” “It is the appellant‟s burden to supply the record necessary for our review.” Wagner
v. Bondex Intern., Inc., 368 S.W.3d 340, 357 (Mo. App. 2012). Where all or part of the transcript
is missing from the record on appeal, such evidentiary omission will be taken as favorable to the
trial court‟s ruling and unfavorable to the appeal. Saturn of Tiffany Springs v. McDaris, 331
S.W.3d 704, 712 (Mo. App. 2011).
Despite Husband‟s intentional omission of a part of the trial transcript, the record is still
replete with evidence to support the court‟s determination to impute income of $26,935 per
month to Husband in calculating the amount of child support. “The theory behind imputing
income to a spouse/parent is directed towards preventing a spouse from escaping responsibilities
to the family by deliberately or voluntarily reducing his or her income.” Heck v. Heck, 318
S.W.3d 760, 764 (Mo. App. 2010) (quoting Cross v. Cross, 318 S.W.3d 187, 192 (Mo. App.
2010)) . Thus, in appropriate circumstances, a trial court may impute income to a party
according to what that party could earn by using his best efforts to gain employment suitable to
12
his capabilities. See Butler v. Butler, 562 S.W.2d 685, 687 (Mo. App. 1977); Form 14, Line 1,
Comment H. Appropriate circumstances to impute income to a spouse include situations where
the party voluntarily reduced his income without justification or lost his job involuntarily but
“has failed to use his or her best efforts to secure new employment, refused offers of
employment, or failed to make a showing that the unemployment was something other than
temporary.” Hern v. Hern, 173 S.W.3d 653, 655 (Mo. App. 2005).
Here, the record reflects that Husband is a graduate of Harvard Law School. He was
hired by a large Kansas City law firm where he worked for twenty-nine years before quitting.
After quitting, he and another law partner established a law partnership called Finch &
Campbell. This partnership dissolved roughly four months before trial. Currently, Husband is a
solo practitioner and a member of the Missouri Bar Association in good standing. At the time of
trial, Husband was listed in Best Lawyers of America in anti-trust, commercial litigation,
property litigation, and white collar crime. He was also named as one of the Missouri/Kansas
Superlawyers.
Notwithstanding Husband‟s substantial legal experience and various legal accolades,
Husband contends that his gross monthly income for purposes of determining child support
should be zero because his law practice has yet to make a profit and the Great Recession has
prevented him from getting work that would produce such a high monthly income that the court
imputed. We disagree.
The record reflects that Husband is not seeking employment at the present time which
would allow him to obtain a salary increase because he wishes to be self-employed. Such failure
to seek for better employment and his argument that his gross monthly income on his Form 14
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should be zero provides further evidence that Husband is intentionally under-employed by
deliberately and voluntarily reducing his income. See Heck, 318 S.W.3d at 764.
While Husband argues that there is a Great Recession, there is nothing in the record that
would require the trial court to find that this Great Recession would continue indefinitely into the
future. Goodwin v. Goodwin, 746 S.W.2d 124, 127 (Mo. App. 1988) (finding that even assuming
that 1986 was a bad year for real estate, “nothing in the record would require the court to find
that such condition would continue indefinitely into the future.”). If there was an economic
downturn, Husband‟s average gross monthly income of $26,935 over the last five years does not
reflect such a Great Recession. Furthermore, Husband admitted at trial that during this terrible
economic climate in 2011 he earned $409,833.
Therefore, there is substantial evidence on the record that Husband has significant legal
experience and education, yet Husband does not seek employment at the present time which
would allow him to obtain a salary because he wishes to be self-employed. As such evidence
supports the court‟s finding that Husband is currently under-employed and has positioned
himself as such, the court did not abuse its discretion in imputing monthly gross income to
Husband of $26,935 for purposes of calculating child support. Point three is denied.
Loans Proceeds
In Husband‟s fourth point on appeal, he argues that the trial court abused its discretion
and misapplied the law in finding in its Amended Judgment that Husband had failed to account
for $100,000 in loan proceeds. Husband contends that Wife waived this claim in her discovery
responses, the issue was not raised at trial, but was raised for the first time in Wife‟s proposed
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post-trial findings. Finally, Husband argues that the trial court abused its discretion when it
refused to supplement the record to consider Husband‟s post-trial response to this ambush.4
“[T]he trial court enjoys broad discretion in making determinations on issues relating to
the squandering of assets, because it is in the better position to judge credibility.” Heslop v.
Heslop, 967 S.W.2d 249, 255 (Mo. App. 1998). Nevertheless, “[t]he party alleging that another
party squandered property must present evidence of it or no finding of squandering or
reimbursement will result.” Lawrence v. Lawrence, 938 S.W.2d 333, 338 (Mo. App. 1997). As
neither party requested findings of facts and conclusions of law on any issues, “the appellate
court presumes that the trial court resolved factual issues in accordance with the result reached.”
Rule 73.01(c); Henning v. Henning, 72 S.W.3d 241, 247 (Mo. App. 2002).
Here, Husband testified at trial that he borrowed $275,000 on the home equity line
against the marital residence to purchase another residence located on Stone Ridge. The
purchase price of that home was $195,000. Husband offered no explanation at trial for use of the
additional $80,000. Husband also testified that he borrowed another $80,000 on a home equity
line of credit secured by a different residence. Husband testified that he took the $80,000 to
reimburse withdrawals from IRA accounts allegedly used to pay household expenses and start
his own law practice. Husband learned, however, that he would not be able to put the money
back into the IRAs. On the date of trial, only $33,000 remained of the $80,000. The remaining
balance was awarded to Husband in the property division. The trial court “may order
reimbursement of squandered or secreted marital property or include such assets as part of the
4
As Husband fails to provide any legal support or develop his argument regarding the trial court‟s refusal
to supplement the record after the trial. This portion of his point is deemed abandoned because Husband failed to
cite any applicable case law or present any facts received in evidence that would support his claim of error. In re
Marriage of Michael, 142 S.W.3d 912, 930 (Mo. App. 2004); In re Marriage of Spears, 995 S.W.2d 500, 503 (Mo.
App. 1999).
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martial property.” In re Thomas, 21 S.W.3d at 173. As the record reflects that Husband took out
two equity lines of credit, yet could not account for all of the borrowed funds, there is substantial
evidence on the record to support the trial court‟s conclusion that Husband failed to account for
$100,000 in loan proceeds. Point four is denied.
Medical Insurance Premium
In Husband‟s fifth point on appeal, he argues that trial court erred in failing to credit
Husband in its Amended Judgment for the amount of health care insurance premiums Husband
was ordered to pay for his then-minor children in the trial court‟s Form 14 calculation of child
support. Husband contends that the health insurance deduction is required in Form 14 and the
trial court made no findings that the deduction is unjust or inappropriate. This Court is precluded
from addressing this issue as Husband failed to file a Form 14.5 Failure to file a Form 14
precludes a party from challenging the trial court‟s calculation of child support. Basham v.
Williams, 239 S.W.3d 717, 724 (Mo. App. 2007) (holding that “[t]o permit a party who did not
file a Form 14 with the trial court to appeal child support decisions is akin to pursuing a different
theory of recovery on appeal than was pursued at trial.”); Davies v. Davies, 887 S.W.2d 800, 805
(Mo. App. 1994). As this Court is precluded from addressing this point and declines to review
Husband‟s point ex gratia, point five is denied.
Retroactive Child Support
In his sixth point on appeal, Husband argues that the trial court abused its discretion and
misapplied the law in the Amended Judgment by requiring Husband to pay child support
retroactively to January 1, 2013. Husband contends that he had already paid all the minor
5
Husband filed a Form 14 attached as an exhibit to his post-trial motion. As Husband‟s exhibit was not
admitted into evidence, the trial court could not have considered Husband‟s Form 14. See Dawson, 366 S.W.3d at
115 n.11.
16
children‟s expenses through February 2013, and Wife waived retroactive child support because
she never asked for temporary or retroactive child support. We disagree.
The decision to make an award of child support retroactive is within the sound discretion
of the trial court. Farr v. Cloninger, 937 S.W.2d 760, 763 (Mo. App. 1997). The trial court‟s
determination of the effective date of child support judgment should not be disturbed absent an
abuse of discretion. Snell v. Snell, 916 S.W.2d 414, 416 (Mo. App. 1996).
Section 452.340.1 allows a trial court to order that child support be awarded retroactive to
the filing date of the petition. Section 452.340.1 reads, in pertinent part, that “the court may
order either or both parents owing a duty of support to a child of the marriage to pay an amount
reasonable or necessary for the support of the child, including an award retroactive to the date of
filing the petition…” (emphasis added).
Here, Wife requested an award of child support in her Counter-Petition for Dissolution of
Marriage. The trial ended on December 5, 2012 and the original dissolution decree was entered
on February 25, 2013. In this decree, it was ordered that Husband pay child support
commencing January 1, 2013. As the Husband was ordered to pay child support the first day of
the month after trial commenced, the trial court‟s order was within the statutory guideline that
allows child support be awarded retroactive to the date of filing. § 452.340.1.
Despite the trial court‟s statutory authority to award retroactive child support, Husband
cites C.M.D. v J.R.D., 710 S.W.2d 474 (Mo. App. 1986) and facts not on the record to support his
stance that the court abused its discretion in awarding him to pay retroactive child support.
However, neither establishes that the child support judgment was a misapplication of the law, or
is arbitrary and capricious. First, when C.M.D. was decided in 1986, a trial court did not have
statutory authority to order retroactive child support. Section 452.340 was amended in 1988,
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giving trial courts statutory authority to award retroactive child support. § 452.340.1, RSMo
Cum. Supp. 1988. Second, Husband argues that he paid all of the children‟s expenses through
February 2013. However, Husband cites exhibits in the legal file that were not received in
evidence at trial to support this argument. On appeal, we consider only the record made in the
trial court. Sleater v. Sleater, 42 S.W.3d 821, 822 n.1 (Mo. App. 2001).
As neither Husband‟s cited case law, nor his reliance on evidence not received at trial,
established that the child support judgment was a misapplication of the law, or is arbitrary and
capricious, Husband failed to meet his burden. Therefore, the trial court did not abuse its
discretion by ordering Husband to pay retroactive child support. Section 452.340.1 provides that
a trial court may award child support retroactive to the date of filing the petition. As the trial
court‟s retroactive child support date was within this statutory guideline, Husband‟s point six is
denied.
Husband’s Post-Trial Motions
In Husband‟s seventh point on appeal, he argues that the trial court abused its discretion
and misapplied the law by failing to address (1) the cost of repairs to the marital residence
caused by post-separation waste of that marital asset, (2) Husband‟s petition for damages to the
marital residence post-separation for economic misconduct, neglect, waste, and lost value of
marital assets, and (3) Husband‟s alternative motion to set aside the judgment under Missouri
Rule 74.06(b)(2). Husband contends that because a marital asset awarded to Husband was
damaged post-separation and post-trial due to Wife‟s neglect of the family pets that it is unfair to
place the burden on him to repair the damages that happened when the house was exclusively in
Wife‟s possession as such burden would result in an inequitable division of marital assets in
violation of § 452.330. We find no abuse of discretion.
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While Husband argues in his point relied on that the court failed to address his alternative
motion to set aside the judgment under Missouri Rule 74.06(b)(2), Husband fails to even address
this motion in his argument section. Errors raised in points relied on not supported by argument
are deemed abandoned and present nothing for appellate review. In re Marriage of Michael, 142
S.W.3d at 930.
Having abandoned his failure to address argument as it relates to the alternative motion to
set aside the judgment, we turn to Husband‟s other argument. Husband argues that the court
failed to address his post-trial petition for damages to the Strode House post-separation.
Husband‟s argument, however, clearly overlooks the record. The Amended Judgment states in
pertinent part:
The court does not find credible that it will cost in excess of $51,000 to
restore the [marital residence] home to a marketable condition. If the home needs
to be cleaned and maintained, the court finds that this responsibility does not rest
solely on the [Wife‟s] shoulders. Further, even if it will cost some amount of
money to clean the home, neither party plans on selling the home.
Here, it is clear from the record that the court did in fact address Husband‟s petition
regarding damages to the marital residence but did not find credible Husband‟s testimony at trial,
or in his petition, regarding the matter. Determinations of credibility are within the trial court‟s
broad discretion and this Court wisely defers to the trial court‟s discretion on credibility matters.
Maskill v. Cummins, 397 S.W.3d 27, 34 (Mo. App. 2013).
While Husband may not agree with the court‟s findings, his only argument here is that the
court failed to address his petition for damages, as his other point relied on is abandoned. As the
record reflects that the court did in fact address Husband‟s petition for damages, the court did not
abuse its discretion and misapply the law. Point seven is denied.
Wife’s Housekeeping Efforts
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In Husband‟s final point on appeal, he argues that the trial court abused its discretion by
precluding him from cross-examining Wife with leading questions as an adverse witness.
Husband further contends that the court abused its discretion by preventing him to testify about
Wife‟s failures as a homemaker on the grounds that the housekeeping failures did not impair the
value of the house because it went towards his argument that Wife‟s failures put an extra burden
on him justifying an unequal division of marital assets. We find no abuse of discretion.
“The trial court is vested with broad discretion regarding rulings on the admission of
evidence[.]” Giddens v. Kansas City Southern Ry. Co., 29 S.W.3d 813, 819 (Mo. banc 2000).
“Judicial discretion is abused when the trial court‟s ruling is clearly against the logic of the
circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of
justice and indicate a lack of careful consideration.” Id.
It should come as no surprise that Husband‟s final point on appeal comes full circle back
to his first argument and Wife‟s alleged lack of housekeeping effort. In an attempt to get this
Court to buy his argument, Husband claims that he wasn‟t able to ask Wife leading questions or
testify himself to Wife‟s lack of housekeeping effort. This Court, like the trial court below, is not
buying what Husband is trying to sell—an unequal distribution of marital property division in
Husband‟s favor because of Wife‟s alleged housekeeping failures.
Here, Husband provides legal authority to support his argument and then lists transcripts
pages for us to examine on our own. “When a party fails to develop a point relied on in the
argument section, it is deemed abandoned.” Lack v. Payne, 151 S.W.3d 862, 867 (Mo. App.
2004). Husband fails, however, to properly develop his point by explaining how the cited
authority and the cited transcripts pages amounts to an abuse of discretion by the trial court.
Instead, Husband leaves this Court to provide the explanation part of his analysis, which we
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cannot do. Thompson v. Thompson, 786 S.W.2d 891, 892 (Mo. App. 1990) (stating that “[i]t is
not the duty of an appellate court to become an advocate for the appellant[.]”). Therefore,
Husband‟s final point is deemed abandoned and denied.
Conclusion
We conclude, therefore, that the circuit court did not abuse its discretion in (1) awarding
Wife 54% of the martial property because the court properly considered Husband‟s sexual and
financial misconduct during the marriage, as well as the other factors in § 452.330.1; (2)
awarding Wife $4,050 in monthly maintenance because neither the Hill case nor § 452.335
require the court to impute income from Wife‟s IRA and retirement accounts and the facts
supported Wife‟s need for maintenance; (3) finding that Husband was under-employed and in
attributing monthly income of $26,935 to him because there is sufficient evidence on the record
that Husband has significant legal experience and education to allow him to obtain a salary more
closely aligned with his experience and education; (4) finding that Husband had failed to account
for $100,00 in loan proceeds because there was sufficient evidence on the record that Husband
took out two equity lines of credit but could not account for all of the borrowed funds; (5) failing
to credit Husband for the amount of health care insurance premiums Husband was ordered to pay
for his then minor children because this Court is precluded from addressing this point as
Husband failed to provide the court with a Form 14; (6) requiring Husband to pay child support
retroactively because § 452.340.1 provides that a trial court may award child support
retroactively to the date of filing the petition and the court‟s retroactive date was within this
guideline; (7) failing to address Husband‟s petition for damages to the marital residence post-
separation and his motion to set aside the judgment because the court did in fact address
Husband‟s petition for damages and Husband abandoned his motion to set aside the judgment
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point as he failed to support it with argument; and (8) precluding Husband from cross-examining
Wife with leading questions and preventing him to testify about Wife‟s failures as a homemaker
because Husband failed to properly develop his point, thereby abandoning the point. We affirm
the circuit court‟s judgment.
/s/
Anthony Rex Gabbert, Judge
All concur.
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