Janet v. Janet
Appeal from the Circuit Court of Jackson County to Missouri Court of Appeals – Western District
WD84412
Opinion Filed – November 30, 2021
The parties E. Janet (hereinafter “Wife”) and R. Janet (hereinafter “Husband”) were married in 1992 and their divorce was finalized in November of 2020. After the parties married, they agreed that Wife would remain home to raise the children. The parties accumulated significant assets during the course of their marriage.
The trial court issued the divorce judgment on November 24, 2020. Thereafter, Husband filed a five point appeal and raised the following issues: , Husband argues that the trial court erred in: (1) awarding nonmodifiable maintenance of “no less than $28,476 per month” for eighty-four months, because Wife was not entitled to any maintenance; (2) making the maintenance award nonmodifiable, because future events pertinent to maintenance are uncertain; (3) including Husband’s income in the award of maintenance because inclusion of income in 2 maintenance constitutes “double dipping” as Wife was awarded a portion of the value of the stock of the company that employs Husband; (4) using December 31, 2019, as the valuation date of the parties’ marital assets and debts, because those values were stale at the time of the distribution; and (5) determining the value of the marital assets and debts, because the judgment contained “numerous mathematical errors and other substantial errors” that resulted in an inequitable division of marital property.
Additionally, Wife filed a motion with this Court to strike Husband’s brief and dismiss this appeal.
Point I – Trial Court’s Award of Maintenance
On Appeal, Husband argued that Wife was not entitled to any maintenance because she did not meet her burden pursuant to RSMO 452.335.1 and because the trial court did not make any findings as to Wife’s reasonable needs or to Husband’s ability to pay.
Husband does not claim in this point that the maintenance awarded was excessive or improperly calculated, but instead argues that Wife was entitled to no maintenance whatsoever because she failed to meet her burden under section 452.335.1.
The Appellate Court agreed with the trial court ruling that: “Wife had no financial resources or identifiable stream of income. Accordingly, there is sufficient substantial evidence to support the trial court’s finding that Wife required maintenance in order to meet her reasonable needs because she lacked sufficient property to provide for herself and because she would be unable to support herself through employment.”
Additionally, the Appellate Court noted that “ . . . neither party requested findings of fact and conclusions of law on the issue of maintenance pursuant to Rule 73.01(c).”
Point I Denied.
Point II – Non-Modifiability of Maintenance Award
The Appellate Court agreed with Husband that the trial court erred in making maintenance non-modifiable because future events relating to the appropriateness of maintenance are uncertain.
The Appellate Court held that: “A nonmodifiable order of maintenance must be justified by the facts and circumstances of the particular case. Where future events that may affect the issue of maintenance are uncertain, the maintenance should be modifiable.”
The Appellate Court also noted that although Wife had numerous health issues and that her disease will progress with age, there is no evidence of any possible, let alone likely, change in circumstances, or that she would receive additional income, or that her expenses would abate at the end of eighty-four months.
Wife’s maintenance award should be modifiable and indefinite.
Point II granted.
Point III – Tying Maintenance Award from Husband’s Income From Stock
Husband argues that an award of maintenance based upon the income Husband earns from the Dutch Enterprises stock is improper “double-dipping” because the Dutch Enterprises stock was determined to be marital property, and Wife was consequently given credit for the value of the stock as part of her apportionment of marital property.
The Appellate Court agreed that Husband’s K1 income is in no way related to Wife’s reasonable needs (other than as one indication of the standard of living established during the marriage) but is directly related to his ability to pay maintenance.
Point III granted.
Point IV – Valuation of Marital Assets
Husband’s fourth point on appeal is that the trial court erred in using December 31, 2019, as the valuation date for certain marital assets because the valuations on that date had become stale by the date of trial.
Husband does not allege which marital assets he believes to be wrongly valued or what he believes the more accurate values to be, nor does he provide specific citation to the record that supports his allegedly more accurate valuation. The factual section of Husband’s brief cites to several of his trial exhibits, but many of these do not support his claims, and they are not mentioned in his argument supporting this point relied on.
The Appellate Court agreed that “Husband is correct that ‘the [v]aluation of property should be reasonably proximate to the date the division is to be effective.’ Smith v. Smith, 985 S.W.2d 836, 841 (Mo. App. W.D. 1998). In most cases, the proper date for valuation of marital property is the date of trial.” McCallum, 128 S.W.3d at 66.
In the instant case the trial court used the valuations from December 31, 2019 and Husband did not ever indicate that the valuations from April of 2020 were more accurate.
Point IV Denied.
Point V – Mathematical and Other Substantial Errors
Husband’s final point on appeal is that the trial court’s judgment contained “numerous mathematical errors and other substantial errors” that “resulted in an unfair and inequitable division of marital property and an erroneous equalization payment.”
The Appellate Court held that many of the arguments in Point V are a rehashing of Point IV. Additionally, Husband’s brief contains several pages of arguments without a citation to a single authority.
The Appellate Court also emphasized that: “ . . . the argument supporting Point V complains that the apportionment of marital property was not equal. But the trial court is not required to distribute marital property equally, only equitably according to the circumstances in each case.” Michel, 142 S.W.3d at 922
The only portions of Point V that have merit are that Husband’s Ford F-150 should have been included as a part of Dutch Enterprises (one of the businesses Husband owns) and second, the judgment recites that the Dutch Enterprises building was owned one-third by Husband, one-third by Wife, and one-third by Wife’s brother. The evidence was that Husband and Wife shared a one-half interest in the building, and Wife’s brother owned the other half. This correction should be made by the trial court.
Point V denied in part and granted in part.
