NANCY STEFFEN RAHMEYER, J.
Annie Belden ("Appellant") appeals the trial court's judgment entered in favor of Timothy Belden ("Respondent") upholding the execution sale of a home formerly owned by the parties as tenants in common. Specifically, Appellant claims: (1) the trial court erred as the home was her homestead and was, therefore, exempt from execution; (2) the trial court erred in classifying her claim for conversion of personal property located in the home as one in equity to divide marital property; (3) the trial court erred in awarding Respondent attorney's fees and costs; and (4) the trial court erred in granting summary judgment on her claim for wrongful execution. We affirm.
Appellant and Respondent's marriage was dissolved by order of the court on April 30, 2004. The parties were awarded joint legal custody of the three children born of the marriage. The eldest child resided primarily with Respondent, while the two minor children resided primarily with Appellant. Appellant was required to pay $150.00 per month to Respondent as support for the eldest child, and Respondent was required to pay $200.00 per month to Appellant for child support for each of the two minor children. As part of the "PROPOSED SETTLEMENT SUMMARY", Appellant and Respondent owned real property, a home located at 2865 E. Catalpa, as tenants in common for one year "or until [Appellant] acquir[ed] a loan in her own name (whichever comes first)." If Appellant was not able to assume the balance of the loan or acquire a loan in her name within one year, the property would be sold and the proceeds divided equally between Appellant and Respondent. The settlement also provided "[t]he parties have equitably divided the household furnishings that they agreed to be marital property and set apart to each other those items that they have agreed are non-marital property."
Respondent filed a motion to modify child support in late 2004. The court entered a judgment of modification on October 3, 2005, requiring Appellant to pay to Respondent $961.00 per month in child support. Appellant later filed a motion to set aside the judgment and for a new trial, claiming she had been abandoned by her attorney. The court granted Appellant's motion to set aside the modification judgment, but ordered the terms of the modification remain in place as a temporary order of the court pending the final modification judgment.
The final modification judgment, entered on January 18, 2007, awarded Respondent sole custody of the children and required Appellant to pay $661.00 per month in child support.
Respondent and Royce applied for writs of execution
On August 16, 2007, Respondent filed a petition for unlawful detainer, alleging ownership of the home by virtue of the sheriff's sale, and that "[Appellant] has refused and continue[s] to refuse to vacate and otherwise surrender possession of the Property." Appellant failed to appear for the hearing, and the court issued judgment in favor of Respondent for possession of the home on September 12, 2007. Additionally, the judgment ordered "[a]ny and all personal property of [Appellant] remaining in the subject real property on this date is declared and deemed to be abandoned by [Appellant] and [Respondent] may remove and/or dispose of the same in any reasonable manner."
Two years later, on August 12, 2009, Appellant filed a five-count petition against Respondent, Royce, and King. In relevant part, Appellant alleged that the property was her homestead and was exempt from execution, and, because the sheriff failed to
Respondent, Royce, and King filed a motion for partial summary judgment on the basis that the home was not Appellant's homestead and Appellant failed to file a claim for the homestead exemption; the motion was granted by the trial court.
In her first and second points, Appellant argues summary judgment was inappropriate because the home was exempt from execution as her homestead property. In her first point, Appellant claims:
In her second related point, she avers:
Although Appellant frames both points as error by the trial court in sustaining the motion for partial summary
Section 513.445.2 provides "[t]he judgment debtor may make claim for exemption by filing a verified request with the levying officer within twenty days after notice of the levy." A similar procedure is outlined in Rule 76.075(b). The plain language of the statute clearly outlines the filing process for claiming an exemption. "There is no need to resort to statutory construction to create an ambiguity where none exists." State v. Moore, 303 S.W.3d 515, 521 (Mo. banc 2010). Nothing in the statute suggests, as Appellant does, that a debtor is not required to file a claim for exemption.
In support for her assertion, Appellant relies on Meeks Leasing Co. v. Young, 881 S.W.2d 232 (Mo.App. S.D.1994). In Meeks Leasing, this Court reversed the judgment granting the sale of property and excused the debtors' failure to verify their claim for the exemption, as required under section 513.445.2. Id. at 237 (emphasis added). Appellant relies on language from the opinion that "our homestead law establishes that such property is absolutely exempt from attachment or levy, and the exemption is self-enforcing." Id. at 236. Meeks Leasing does not assist Appellant. In Meeks Leasing, the trial court denied the exemption because the request was not properly verified. Id. at 236. Although, the Meeks Leasing plaintiffs served upon the sheriff a written "Notice of Claim of Homestead", citing the statute and describing the property within the appropriate time frame, the trial court found that "verification [was] jurisdictional[,]"
Appellant argues in her third point:
As best we can discern from the brief, Appellant is arguing that she pleaded a cause of action for conversion, and, therefore, the trial court erred in classifying it as a claim in equity to divide marital property not previously divided in the dissolution. Underlying her argument appears to be that she properly pleaded a cause of action for conversion. We disagree.
Conversion is the unauthorized exercise of dominion or control over another's personal property to the exclusion of the owner's rights. Kingfisher Hospitality, Inc. v. Behmani, 335 S.W.3d 486, 498 (Mo.App. S.D.2011).
Mackey v. Goslee, 244 S.W.3d 261, 264 (Mo.App. S.D.2008) (quoting R.J.S. Sec., Inc. v. Command Sec. Services, Inc., 101 S.W.3d 1, 15 n. 6 (Mo.App. W.D.2003)). To recover on a conversion claim, a plaintiff must establish he had the right to possession of the converted property at the time of the alleged conversion. Hunt v. Estate of Hunt, 348 S.W.3d 103, 113 (Mo.App. W.D.2011).
Appellant failed to properly plead a cause of action for conversion in her petition and failed to show she had a right to possession of the property or was the owner of the property. Appellant did not plead facts to support a claim that she was entitled to possession of the property at the time of the alleged conversion. In fact, the August 16, 2007 judgment deemed the personal property remaining in the real estate was abandoned and allowed Respondent to remove or dispose of the property. She did not appeal that judgment. Appellant had no claim at the filing
In her fourth point, Appellant challenges the trial court's award of costs and attorney's fees because in Missouri each party shall bear the expense of their own attorney's fees in that there is no contract right for attorney's fees in this case, no statutory right for attorney's fees in this case, and no special circumstances to make the award of fees necessary.
Appellant is correct that we follow the American Rule, which provides that, generally, litigants must bear the expense of their own attorney's fees. In re Marriage of Cornella, 335 S.W.3d 545, 557 (Mo.App. S.D.2011). Her argument, however, ignores that the trial court did have a statutory basis for awarding Respondent attorney's fees. Section 452.355.1 provides, in relevant part:
In his counterclaim to Appellant's petition, Respondent alleged that Appellant failed to contribute half of their children's post-secondary education costs, as required by the January 18, 2007 modification judgment. Section 452.355.1 grants the trial court the authority to award attorney's fees, even for services rendered and costs incurred after entry of the final judgment, and we will not disturb the trial court's award absent an abuse of discretion. Groenings v. Groenings, 277 S.W.3d 270, 279-80 (Mo.App. E.D.2008). An abuse of discretion occurs where the award was arbitrary, unreasonable, and against the logic of the circumstances as to shock the sense of justice. Id.
We presume an award of attorney's fees to be correct, and the party challenging the award on appeal bears the burden of proving otherwise. Bryant v. Bryant, 351 S.W.3d 681, 691 (Mo.App. E.D.2011). Appellant has not addressed the trial court's authority to award attorney's fees pursuant to section 452.355. To the extent that the trial court based its award of attorney's fees, as requested in Respondent's counterclaim, on Appellant's "actions [and] disregard of the judgment of the divorce court," it had the authority to do so. Moreover, a party's actions during the pendency of the litigation are especially considered when those fees were the result of the other party's conduct, as was the case here. Cornella, 335 S.W.3d at 557. We find no abuse of discretion. Appellant's fourth point is denied.
In her fifth point, Appellant contends:
Appellant's point on appeal appears to claim that the executions were wrongful because the date listed under "judgment" on the writs of execution was the date of the dissolution and, on that date, there were no monetary damages. Not only does Appellant's point appear to state an incorrect principle of law,
The judgment of the trial court is affirmed.
GARY W. LYNCH, P.J., and WILLIAM W. FRANCIS, JR., J., concur.
The court found Thomas Belden to have been emancipated as of December 1, 2005.