Cecelia Carlis Dickerson v. Charles Daniel Dickerson ( 2019 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
CECELIA CARLIS DICKERSON, ) No. ED106855
)
Respondent, ) Appeal from the Circuit Court
) of Cape Girardeau County
vs. )
)
CHARLES DANIEL DICKERSON, ) Honorable Benjamin F. Lewis
)
Appellant. ) Filed: June 28, 2019
OPINION
Charles Daniel Dickerson (“Husband”) appeals from the judgment of the trial court
dissolving his marriage to Cecelia Carlis Dickerson, n/k/a Cecelia Carlis Edwards (“Wife”).
Husband asserts three points on appeal, arguing the trial court abused its discretion in awarding
Wife $800 in monthly maintenance, ordering Husband to pay Wife a property equalization
payment of $7,350, and ordering Husband to pay Wife’s attorney $3,000 for attorney’s fees.
Finding no error, we affirm the judgment.
Factual and Procedural Background
Husband and Wife were married in 1992 and separated in September of 2014. Wife filed
a Petition for Dissolution of Marriage on July 15, 2015. Husband filed a Counter-Petition for
Dissolution. The parties are familiar with the facts, therefore, we will not recite them here. We
will discuss the relevant facts in the Discussion section below as necessary to resolve the issues
raised on appeal.
The case was tried before the court on February 23, 2018. Both parties testified and
presented evidence regarding Wife’s disability, their respective incomes and reasonable
expenses, marital assets and debts, and the disposition of marital property. Wife sought an
equitable division of the marital assets and debts, monthly maintenance, and attorney’s fees.
Husband opposed Wife’s request for attorney’s fees, and requested the court award Wife $300 in
monthly maintenance.
After hearing all the evidence, the trial court entered a judgment dividing the marital
assets and debts, ordering Husband to pay Wife an equalization payment of $7,350, awarding
Wife $800 in permanent, modifiable monthly maintenance, and ordering Husband to pay $3,000
to Wife’s attorney for outstanding legal fees. Husband filed a Motion for Reconsideration and
Amendment and/or for New Trial, which was denied. This appeal follows.
Points on Appeal
Husband asserts three points on appeal. In Point I, Husband argues the trial court erred in
awarding maintenance to Wife in the amount of $800 per month because there was no evidence
to support the amount of the award, and the trial court’s order is against the weight of the
evidence regarding Wife’s reasonable expenses, as well as Husband’s income, reasonable
expenses, and ability to pay. In Point II, Husband argues the trial court erred in ordering him to
pay Wife a property equalization payment in the amount of $7,350 because there was no
evidence to support the amount of the award, the court prohibited counsel from adducing
evidence regarding Wife’s financial misconduct, and the court’s order is against the weight of
the evidence. In Point III, Husband argues the trial court erred in ordering Husband to pay
2
$3,000 towards Wife’s attorney’s fees and court costs because the order was against the weight
of the evidence and an abuse of discretion in that there was no foundation laid as to the amount
or reasonableness of the fees awarded, Wife’s actions resulted in excess attorney’s fees, and the
court declined to hear evidence as to Wife’s financial misconduct.
Standard of Review
In a dissolution of marriage case, as with any court-tried case, our standard of review is
governed by Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Cureau v. Cureau, 514
S.W.3d 685, 689 (Mo. App. E.D. 2017). The judgment will be affirmed unless it is not supported
by substantial evidence, it is against the weight of the evidence, it erroneously declares the law,
or it erroneously applies the law. Id. We view the evidence and all reasonable inferences
therefrom in the light most favorable to the trial court’s judgment, and disregard all contrary
evidence and inferences. Id. Where the trial court did not make a specific finding regarding a
disputed factual issue, we consider that fact found in accordance with the result reached. Id.; see
also Rule 73.01(c).1
Discussion
I. The Trial Court did not Err in Awarding Wife $800 in Maintenance (Point I)
In Point I, Husband argues the trial court erred in awarding maintenance to Wife in the
amount of $800 per month because there was no evidence to support the amount of the award,
and the trial court’s order is against the weight of the evidence regarding Wife’s reasonable
expenses, as well as Husband’s income, reasonable expenses, and ability to pay. We disagree.
The rules governing maintenance awards in dissolution cases are found in Section
452.335. In determining whether to award maintenance, the court must conduct a two-step
1
All rule references are to Missouri Supreme Court Rules (2018), unless otherwise indicated.
3
analysis. Kratzer v. Kratzer, 520 S.W.3d 809 (Mo. App. E.D. 2017). First, the court must find
the spouse seeking maintenance: “(1) Lacks sufficient property, including marital property
apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself
through appropriate employment or is the custodian of a child whose condition or circumstances
make it appropriate that the custodian not be required to seek employment outside the home.”
Section 452.335.1.2 If this threshold test is satisfied, the court must determine the amount and
duration of maintenance after considering the following statutorily-prescribed factors:
(1) The financial resources of the party seeking maintenance, including marital
property apportioned to him, and his ability to meet his needs independently,
including the extent to which a provision for support of a child living with the party
includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party
seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him
and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking
maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs
while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.
Section 452.335.2.
“A trial court’s maintenance award shall be limited to the reasonable needs of the spouse
seeking maintenance; however, the spouse’s reasonable needs need not be limited to the spouse’s
actual expenses at the time of dissolution.” L.R.S. v. C.A.S., 525 S.W.3d 172, 189 (Mo. App.
E.D. 2017). The court may consider evidence of prospective expenses where a party’s actual pre-
dissolution expenses do not reflect their expected post-dissolution expenses. See Orange v.
2
All statutory references are to RSMo (2016), unless otherwise indicated.
4
White, 502 S.W.3d 773, 780 (Mo. App. E.D. 2016); Sweet v. Sweet, 154 S.W.3d 499, 506 (Mo.
App. W.D. 2005).
The trial court is vested with broad discretion in awarding maintenance, and we will only
reverse its ruling upon finding an abuse of discretion. Cureau, 514 S.W.3d at 689. The trial court
abuses its 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. We defer to the trial court even if the evidence could support a different
conclusion. Id. If reasonable minds could differ about the propriety of the trial court’s decision,
there is no abuse of discretion. Id.
Here, the threshold test under Section 452.335.1 was satisfied because Husband conceded
that a maintenance award was warranted by requesting that the court award Wife $300 in
monthly maintenance, which was the amount Husband had been paying Wife at the time of trial.
Husband does not claim the court erred in making its maintenance award permanent. Therefore,
the only question is whether the court abused its discretion in setting the amount of maintenance
at $800 per month.
After reviewing the evidence, we find no abuse of discretion. Viewed in the light most
favorable to the judgment, the evidence presented at trial supports the following facts. Wife is
unable to work due to permanent physical disability, and her sole source of income is Social
Security Disability. Wife’s gross monthly disability benefit is $906.70, from which $144 is
automatically deducted each month to pay for the cost of her Medicare and private health
insurance premiums. Wife’s reasonable expenses are $1,849 per month, based on her testimony
regarding actual current expenses and estimates of the increased costs for housing and medical
care she will have to pay after the divorce is finalized. Based on these figures, Wife’s reasonable
5
monthly expenses exceed her income by $942.30. Wife owns very little separate property, and
was awarded a total of $9,350 in marital assets, including $2,000 in personal property and $7,350
in cash.3 Husband and Wife were married 26 years. All of this evidence supports the trial court’s
maintenance award based on the relevant statutory factors in Section 452.335.2. Specifically,
factors (1), (3), (4), (5), (6) and (7) all weigh strongly in favor of awarding Wife $800 in monthly
maintenance, in light of Wife’s limited financial resources, her nonexistent earning capacity, the
standard of living during the marriage, Wife’s lack of assets, the long duration of the marriage,
and Wife’s advanced age and complete physical disability.
In contrast, Husband’s net income is $4,468 per month, based on Wife’s testimony
regarding bank statements showing the average paycheck deposits into Husband’s various
accounts over a six-month period.4 Husband’s reasonable expenses were $3,514 per month,
based on his own Income and Expense Statement.5 These figures demonstrate Husband earns at
least $954 per month more than his reasonable expenses and is, therefore, able “to meet his needs
while meeting those of the spouse seeking maintenance[.]” See 452.335.2(8). Moreover, as
explained below, Husband was also awarded possession of the marital home as well as the
majority of all marital assets.
3
Wife was also awarded half of the value in each of the marital bank accounts and retirement accounts, but there
was no evidence regarding the value of any of these accounts because Husband had exclusive control of these
accounts and failed to produce any records demonstrating their value.
4
Although the bank records were admitted into evidence as Wife’s Exhibit Number 10 as evidence of Husband’s
income, Husband failed to include this exhibit in the record on appeal, as required by Rule 81.12(a). Accordingly,
we presume the information contained in the records supported the trial court’s decision and was not favorable to
Husband’s position. See Thomas v. Harley-Davidson Motor Co. Grp., LLC, 571 S.W.3d 126, 139 (Mo. App. W.D.
2019); Rogers v. Hester, 334 S.W.3d 528, 541 (Mo. App. S.D. 2010); Bruns v. Bruns, 186 S.W.3d 449, 454 (Mo.
App. W.D. 2006) (“All evidentiary omissions in the record on appeal are presumed to support the trial court’s
decision. . . . This court may assume omitted portions of the record are unfavorable to [appellant].”)
5
There was also evidence that some of Husband’s claimed expenses were not reasonable, including $200 donation
to charity which Husband did not actually pay every month, and Husband’s telephone bill of $215 per month.
6
Based on the evidence presented at trial, the $800 in monthly maintenance awarded to
Wife was less than the amount she needed to meet her reasonable needs and well within
Husband’s ability to pay after meeting his own reasonable needs. Accordingly, we find the
evidence supported the amount of the maintenance award, and the trial court did not abuse its
discretion.
Husband argues the trial court erred in calculating Wife’s reasonable expenses because
there was no evidence to support Wife’s claims that she needed $600 for housing and $250 for
prescriptions in that these costs were speculative since Wife admitted in her testimony that she
was not currently paying these expenses and there was no evidence that Wife’s housing or
medical care circumstances would change. We disagree.
Husband is correct that “an award of maintenance cannot be based on a speculative future
condition.” Sweet, 154 S.W.3d at 506 (citation and quotation omitted). However, a spouse’s
reasonable expenses “need not be limited to the spouse’s actual expenses at the time of
dissolution.” L.R.S., 525 S.W.3d at 189. When determining a spouse’s reasonable needs, the
court may take into consideration prospective expenses, such as expected increases in expenses
caused by the dissolution. See id; Orange, 502 S.W.3d at 780. Such considerations are not
uncommon due to changes in one or both spouses’ health insurance and living arrangements
following a divorce. See, e.g., Orange, 502 S.W.3d at 780 (wife’s reasonable expenses for
housing would increase from $200 per month to $600 per month because wife intended to move
out of her mother’s home and into her own apartment after the dissolution was final); Sweet, 154
S.W.3d at 506 (wife’s reasonable expenses for medical prescriptions would increase by $270 per
month “once the dissolution was final” because wife would no longer be “covered under
Husband’s employer’s insurance”).
7
Here, similar to the facts in Orange, there was evidence that Wife’s housing expenses
were expected to increase by $600 after the dissolution because she would no longer be able to
take advantage of the generosity of a friend who had been allowing Wife to live with her rent-
free. See Orange, 502 S.W.3d at 780. Wife testified that the friend would begin to charge her
$600 per month for rent and utilities after the dissolution was final. Also, similar to the facts in
Sweet, there was evidence that Wife’s expenses for prescription drugs would increase by $250
per month after the dissolution. Sweet, 154 S.W.3d at 506. Wife testified that she would no
longer have access to Husband’s health savings account, which she had been using to pay $250
per month in co-pays for the fifteen to twenty medications she takes on a daily basis. Wife’s
testimony regarding her prospective expenses for housing and medical care was not mere
speculation regarding “potential future conditions,” but rather concrete evidence of expected
increases in her expenses following the dissolution. Therefore, the court did not err in including
these costs in Wife’s reasonable expenses when determining the amount of the maintenance
award. See Orange, 502 S.W.3d at 780; Sweet, 154 S.W.3d at 506.
Next, Husband argues Wife’s income “should be adjusted to a total of $1,050.70 to
accurately capture her total monthly disability benefit income,” because Wife deducted the cost
of her health insurance premiums from her income and also included the same amounts as
expenses, resulting in a “double accounting.” We acknowledge Wife’s original Income and
Expense Statement appears to include the cost of her Medicare and health insurance premiums as
both a deduction in her income as well as a reasonable expense. However, Wife’s trial testimony
regarding her income and expenses corrected this issue. Wife testified that her gross Social
Security Disability benefit is $906.70, from which $144 is automatically withheld each month to
pay for her Medicare and private health insurance premiums. Wife also testified that her
8
reasonable expenses were $1,849.00, which is $267.83 less than the amount claimed on her
Income and Expense Statement. Nothing in the record indicates Wife included the cost of her
Medicare and health insurance premiums in the $1,849.00 she is claiming for reasonable
expenses. Moreover, there is no evidence that Wife’s actual gross income is $1,050.70.
Husband’s assertion that Wife testified her net income was $906.70 misstates the evidence, as
Wife repeatedly and consistently testified that the amount of $906.70 represented her total, gross
Social Security Disability payment, from which her Medicare and health insurance premiums are
automatically deducted. Nothing in the record indicates the trial court erred in calculating Wife’s
reasonable expenses.
Finally, Husband argues the trial court “failed to adequately consider all the relevant
factors set forth in [Section] 452.335.2 when determining the amount of maintenance to be
ordered, including the amount of maintenance required by Wife, and Husband’s ability to pay
maintenance in the amount required[.]” We find this argument is not preserved for appeal
because Husband did not request written findings on the statutory factors in Section 452.335.2,
as required by Rule 73.01(c), nor did he object to the lack of written findings in a motion to
amend the judgment.6 See Cule v. Cule, 457 S.W.3d 858, 863 (Mo. App. E.D. 2015). In the
absence of any specific factual findings regarding the factors in Section 452.335.2, we must
presume the trial court considered these fact issues and found facts “in accordance with the result
reached.” Rule 73.01(c); see Cureau, 514 S.W.3d at 689.
6
Rule 73.01(c) provides, in pertinent part:
(c) The court shall render the judgment it thinks proper under the law and the evidence.
...
The court may, or if requested by a party shall, include in the opinion findings on the controverted
material fact issues specified by the party. Any request for an opinion or findings of fact shall be
made on the record before the introduction of evidence at trial or at such later time as the court may
allow.
All fact issues upon which no specific findings are made shall be considered as having been found
in accordance with the result reached.
9
For the foregoing reasons, we find the trial court did not err in ordering Husband to pay
Wife $800 in monthly maintenance. The record clearly supports the trial court’s finding that
Wife needs $800 in maintenance to meet her reasonable expenses, and Husband is able to pay
this amount while meeting his own reasonable expenses. Point I is denied.
II. The Court did not Err in Ordering Husband to pay Wife a property equalization
payment of $7,350 (Point II)
In Point II, Husband argues the trial court erred in ordering him to pay Wife a property
equalization payment in the amount of $7,350 because there was no evidence to support the
amount of the award, the court prohibited counsel from adducing evidence regarding Wife’s
financial misconduct, and the court’s order is against the weight of the evidence. We disagree.
The rules for dividing marital property and debts in a dissolution case are governed by
Section 452.330.1, which provides that the trial court:
. . . shall set apart to each spouse such spouse’s nonmarital property and shall divide
the marital property and marital debts in such proportions as the court deems just
after considering 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 nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.
Section 452.330.1; see Workman v. Workman, 293 S.W.3d 89, 96 (Mo. App. E.D. 2009).
The trial court is vested with broad discretion in dividing marital property. Cureau, 514
S.W.3d at 689. We presume the division of property is correct, and the party challenging the
property division bears the burden of overcoming the presumption. Id. We will affirm the trial
court’s division of marital property unless it is so unduly weighted in favor of one party so as to
constitute an abuse of discretion. Id. The trial court abuses its discretion only when its ruling is
10
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. If reasonable minds could
differ about the propriety of the trial court’s decision, there is no abuse of discretion. Id.
Just as in Point I above, we acknowledge the judgment does not contain written findings
regarding the statutory factors the court was required to consider under Section 452.330.1.
However, Husband did not request written findings, as required by Rule 73.01(c), or raise this
claim of error in a motion to amend the judgment. See Cule, 457 S.W.3d at 863. Accordingly, we
consider all fact issues where the court made no specific findings “as having been found by the
court in accordance with the result reached.” Id.; see Cureau, 514 S.W.3d at 689.
Here, the trial court’s property division awarded each spouse the vehicle and other
personal property in their possession at the time of trial, one half of the value of all marital bank
accounts and retirement accounts, any property or insurance policy titled solely in their name,
and ordered each spouse to pay all debts solely in their name and medical bills incurred on their
behalf. The court also awarded Husband the marital home, ordered Husband to pay all other
marital debt including $61,116 in debt associated with the marital home and $2,300 for a line of
credit, and awarded Wife a ring she received from her Father and three “50 State” quarter
collections she compiled during the marriage as gifts for her children or grandchildren. Finally,
the court ordered Husband to pay Wife an equalization payment of $7,350 to “effectuate a fair
and equitable distribution of marital property and debts.”
We find there is substantial evidence in the record supporting the trial court’s finding that
a $7,350 payment from Husband to Wife was necessary to effect a fair and equitable distribution
of marital property and debts. The evidence introduced by Wife indicated the marital home
11
awarded to Husband had about $28,884 in equity,7 Husband’s truck was worth $10,000 more
than Wife’s car, and the other personal property awarded to Husband was worth $22,736 more
than the personal property awarded to Wife.8 These values were supported by Wife’s testimony,
photographs,9 and an itemized list of property that included Wife’s estimated value for each item.
In contrast, Husband testified that the marital home had negative equity of $12,000, his truck was
worth $10,000, and the only other item of personal property in his possession worth more than
$100 was a refrigerator.
The court rejected both parties’ evidence regarding property value, instead settling on
amounts somewhere between the values claimed by each party. The court found the value of
personal property awarded to Husband including his truck was $14,000, while the value of the
personal property awarded to Wife including her car was $2,000. The court found marital debts
associated with the marital home were $61,116, and Husband owed $2,300 on a line-of-credit.
However, the judgment contains no other findings regarding the value of other marital assets,
such as the marital home, bank accounts, and retirement or pension accounts. The court
expressly stated “[a]t the time of trial, values of certain accounts and pensions were unknown[.]”
Viewing the record in the light most favorable to the judgment, we find the marital home
had $28,884 in equity and the marital bank accounts contained approximately $7,350. These
figures are based on Wife’s testimony regarding the value of the marital home, the court’s
findings regarding the value of the debts associated with the home, and Husband’s concession in
7
Wife testified the house was worth $90,000, and the trial court found the total debt associated with the property
was $61,116, resulting in a net value of $28,884.
8
Wife’s testimony and trial exhibits demonstrated the personal property in Husband’s possession was worth
$25,175, while the personal property in Wife’s possession was worth $2,439.
9
Because Husband failed to include these photographs in the record on appeal, or offer any explanation for their
absence, we assume they would have contained evidence supporting the court’s judgment and unfavorable to
Husband. See Rule 81.12(a); Thomas, 571 S.W.3d at 139; Rogers, 334 S.W.3d at 541; Bruns, 186 S.W.3d at 454.
12
his brief that the $7,350 equalization payment he was ordered to pay Wife “represent[ed] the vast
majority of the parties’ total cash assets at the date of trial.” Therefore, the total ascertainable
value of all personal property and cash was $23,350,10 excluding the marital home, for which the
court found no value, and the retirement accounts, for which there is no evidence regarding their
value.
The judgment awarded Wife a total of $9,350 including the equalization payment, or
40% of the value of all marital personal property and cash, while it awarded Husband $14,000,
or 60%. However, these percentages do not take into consideration the $90,000 value of the
marital home awarded to Husband, the $61,116 in debt associated with the residence, or the
$2,300 in other marital debt assumed by Husband. Once these values are factored in, Husband
received 81.3% of the net value of all marital assets, while Wife received 18.7%.
We cannot say the trial court abused its discretion in ordering Husband to pay Wife
$7,350 to effect a fair and equitable distribution of the marital assets. Without the equalization
payment, Wife would have received a mere 4% of net value of all marital assets. Husband has
failed to show the trial court’s division of property was so “unduly weighted in favor of Wife
that it amounts to an abuse of discretion,” and thus, has failed to overcome the presumption the
division of property was correct. See Cureau, 514 S.W.3d at 691.
Nonetheless, Husband argues the court abused its discretion in ordering Husband to pay
Wife $7,350 because “there was no evidence to support the awarded amount.” We disagree. As
explained above, Wife’s testimony and evidence regarding the value of the marital home and
personal property would have supported an equalization payment much larger than $7,350.
Because the trial court is free to accept or reject all, part, or none of the testimony of a witness, it
10
This value includes the $14,000 in personal property awarded to Husband, the $2,000 in personal property
awarded to Wife, and $7,350 in cash.
13
had discretion to accept Wife’s testimony concerning the value of the marital property. See
Joyner v. Joyner, 460 S.W.3d 467, 477 (Mo. App. W.D. 2015). We defer to the trial court
regarding factual findings and credibility determinations. Courtney v. Courtney, 550 S.W.3d 522,
530 (Mo. App. E.D. 2017). We cannot say the court abused its discretion in awarding Wife an
equalization payment substantially lower than the amount supported by the evidence.
Husband also argues the trial court abused its discretion in ordering Husband to pay Wife
$7,350 “in light of Husband’s payment of all marital debt and upkeep for the marital home
during the pendency of the action.” We disagree. Husband was not entitled to credit for any
payments made using marital assets. See Reese v. Reese, 155 S.W.3d 862, 874 (Mo. App. S.D.
2005) (“Husband is not entitled to a credit for payments made with marital funds during a period
of separation, but prior to division of the marital property.”) There is no dispute that all payments
made towards marital debt or home maintenance during the proceedings were made with marital
assets, and there is no evidence that Husband used his own separate property to make these
payments. See Comninellis v. Comninellis, 99 S.W.3d 502, 511 (Mo. App. W.D. 2003) (under
the source of funds rule, property acquired by a spouse using their own separate funds, in whole
or in part, remains that spouse’s separate property to the extent of their contributions from their
separate funds). The fact that the court ordered Husband to assume the majority of the marital
debt following the dissolution does not mean Husband should receive credit for payments made
towards that debt during the marriage, at a time when these were still marital debts.
Finally, Husband argues the trial court erred in ordering Husband to pay Wife an
equalization payment of $7,350 because “the trial court prohibited counsel from adducing
evidence regarding [Wife’s] financial misconduct.” We disagree. There is no evidence that the
trial court prohibited Husband from introducing evidence about Wife’s financial misconduct.
14
The transcript shows Husband cross-examined Wife regarding overdraft transactions, and Wife
admitted writing checks that bounced. The court did not strike Wife’s testimony and there is no
indication in the record that any other evidence of Wife’s financial misconduct exists because
Husband neither claimed additional evidence existed nor made an offer of proof regarding
additional evidence. Although the court instructed Husband to limit further questioning to
current assets, Husband did not object to this instruction, nor did Husband tell the court he was
attempting to introduce evidence of Wife’s financial misconduct, even after the court asked why
Husband was pursuing this line of questioning. Even if we agreed with Husband that the court’s
instruction prohibited him from introducing additional evidence of Wife’s financial misconduct,
we could not review this claim because Husband failed to make an offer of proof regarding any
additional evidence he intended to present. “We generally will not convict the trial court of error
on an issue that was not put before it to decide.” Blanks v. Fluor Corp., 450 S.W.3d 308, 383
(Mo. App. E.D. 2014).
For the foregoing reasons, we find the trial court did not abuse its discretion in ordering
Husband to pay Wife an equalization payment of $7,350. There was substantial evidence in the
record to support the trial court’s finding that a payment in this amount was necessary to
“effectuate a fair and equitable distribution of marital property and debts.” Point II is denied.
III. The Court did not Err in Awarding Wife $3,000 in Attorney’s Fees (Point III)
In Point III, Husband argues the trial court erred in ordering Husband to pay $3,000
towards Wife’s attorney’s fees because the order was against the weight of the evidence and an
abuse of discretion in that there was no foundation laid as to the amount or reasonableness of the
fees awarded, Wife’s actions resulted in excess attorney’s fees, and the court declined to hear
evidence as to Wife’s financial misconduct. We disagree.
15
The trial court enjoys “broad discretion in awarding attorney’s fees,” and will only be
reversed upon a finding of an abuse of discretion. Wagner v. Wagner, 542 S.W.3d 334, 343 (Mo.
App. E.D. 2017). In civil litigation, each party is generally required to pay his or her own
attorney’s fees “unless there is a statute or contract authorizing an award of fees or in the case of
unusual circumstances.” Rallo v. Rallo, 477 S.W.3d 29, 43 (Mo. App. E.D. 2015). “In
dissolution cases, [S]ection 452.355.1 provides the statutory authority and standard for awarding
fees.” Id. Section 452.355.1 gives the trial court discretion to order one party to pay “a
reasonable amount for the cost to the other party of maintaining or defending any proceeding
pursuant to sections 452.300 to 452.415 and for attorney’s fees, including sums for legal services
rendered and costs incurred prior to the commencement of the proceeding and after entry of a
final judgment.” Section 452.355.1; Wagner, 542 S.W.3d at 343. The trial court may only enter
an award of attorney’s fees under Section 452.355.1 “after considering all relevant factors
including the financial resources of both parties, the merits of the case and the actions of the
parties during the pendency of the action[.]” Section 452.355.1. “The trial court is considered an
expert as to the necessity, reasonableness, and value of attorney’s fees and thus, the trial court’s
decision is presumptively correct.” Schubert v. Schubert, 366 S.W.3d 55, 75 (Mo. App. E.D.
2012) (quoting Kelly v. Kelly, 340 S.W.3d 673, 680 (Mo. App. W.D. 2011)).
Here, the trial court ordered Husband “to pay $3,000 to [sic] direct to [Wife]’s attorney as
and for attorney fees[.]” We find this was not an abuse of discretion. Husband concedes in his
brief that “evidence was admitted that certain resources are available to Husband which might
make him better financially equipped to pay attorney’s fees incurred by Wife.” This concession
alone demonstrates the trial court did not abuse its discretion because “[o]ne spouse’s greater
16
ability to pay is sufficient to support an award of attorney’s fees to the other spouse.” Fike v.
Fike, 509 S.W.3d 787, 803 (Mo. App. E.D. 2016).
However, the trial court’s award of attorney’s fees was not based solely on Husband’s
greater ability to pay. The evidence presented at trial showed that Wife was virtually on the brink
of financial destitution throughout the proceedings. This was due in part to her medical
disability, which prevented her from working, and in part to Husband’s conduct in limiting
Wife’s access to marital assets, including by removing Wife’s name from a marital checking
account. As a result, Wife was unable to afford even the most basic expenses, such as housing,
let alone attorney’s fees. In contrast, there was evidence that Husband was withdrawing an
average of $1,383 per month in cash from marital bank accounts in the months leading up to
trial, including $3,300 in December, just three months prior to trial. The extreme disparity in the
financial resources and Husband’s conduct in limiting Wife’s access to marital assets during the
pendency of the proceedings supports the trial court’s order that Husband pay a portion of Wife’s
attorney’s fees. See Schubert, 366 S.W.3d at 75 (affirming an award of attorney’s fees to wife
where there was evidence “Husband liquidated marital assets to pay his attorney’s fees without
Wife’s approval, dissipated marital funds, and made no efforts to support Wife or Daughter
during the pendency of the case”).
Nonetheless, Husband argues the trial court abused its discretion because there was no
evidence of “unusual circumstances” to justify an award of attorney’s fees. In support of this
argument, Husband cites Schwartzkopf v. Schwartzkopf, where this Court held: “To require one
party to pay the attorney’s fees of the other mandates a showing of unusual circumstances
justifying deviation from the normal rule that each party should bear his or her own litigation
costs in a dissolution action.” Schwartzkopf v. Schwartzkopf, 9 S.W.3d 17, 24 (Mo. App. E.D.
17
1999). We must reject this argument in light of our more recent holding in Rallo, where we
expressly overruled the requirement of finding “unusual circumstances” prior to awarding
attorney’s fees in a dissolution case, stating “it is unnecessary and inappropriate to address
whether the case also involves unusual circumstances” because there is no such requirement in
Section 452.355.1, which “provides the statutory authority and standard for awarding fees.”
Rallo, 477 S.W.3d at 43. Following our holding in Rallo, this Court no longer requires a finding
of “unusual circumstances” to support an award of attorney’s fees.11
Husband also argues the trial court abused its discretion in awarding attorney’s fees to
Wife because the evidence that he was “better financially equipped to pay attorney’s fees
incurred by Wife” was insufficient in that “mere proof of greater earning potential by one spouse
is not sufficient, in itself, to support an award of attorney fees against that spouse,” quoting Hihn
v. Hihn, 237 S.W.3d 607, 611 (Mo. App. E.D. 2007) (quoting Switzer v. Switzer, 821 S.W.2d
125, 127 (Mo. App. E.D.1992), overruled on other grounds by King v. King, 865 S.W.2d 403
(Mo. App. E.D. 1993)). We must also reject this argument in light of our more recent holding in
Fike, where we stated “[o]ne spouse’s greater ability to pay is sufficient to support an award of
attorney’s fees to the other spouse.” Fike, 509 S.W.3d at 803.
However, even if we applied the rule in Hihn, we would find the record supports the trial
court’s award of attorney’s fees. The evidence demonstrates that Husband took advantage of his
exclusive control over marital assets by removing Wife’s name from a marital checking account
and making substantial withdrawals from marital accounts in the months leading up to trial. As a
11
Moreover, the attorney’s fees at issue in this case were outstanding legal bills owed to Wife’s attorney for legal
work performed during the marriage. Therefore, they constituted marital debt subject to equitable division under
452.330.1, just like any other marital debt. Accordingly, the court also had authority to order husband to assume this
marital debt under Section 452.330.1. See Stratman v. Stratman, 948 S.W.2d 230, 236-37 (Mo. App. W.D. 1997)
(“There is no merit to Husband's argument that the trial court was precluded from including Wife’s debts in the
property division because they were primarily incurred for attorney fees.”).
18
result, Wife was unable to access marital funds she would have otherwise been able to use to pay
her expenses, including her attorney’s fees. This is substantially more than “mere proof of
greater earning potential by [Husband].” See Hihn, 237 S.W.3d 607, 611.
Accordingly, we find the trial court did not abuse its discretion in ordering Husband to
pay $3,000 towards Wife’s attorney’s fees. Point III is denied.
Conclusion
The judgment of the trial court is affirmed.
__________________________________________
Angela T. Quigless, J.
Roy L. Richter, P.J., and
Robert M. Clayton III, J., concur.
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