WILLIAM W. FRANCIS, JR., J.
Kent A. Sivils ("Husband") appeals the "Judgment and Decree of Dissolution of Marriage" ("Judgment") entered by the trial court.
We recite the facts of this matter in accord with the principle that we view the facts in the light most favorable to the judgment. We credit all evidence and reasonable inferences in favor of the judgment, and disregard unfavorable facts and inferences.
Husband and Patricia J. Sivils ("Wife") were married on March 16, 1996. Two children were born of the marriage: daughter K.M.S., now age 20, and son C.A.S., now age 15.
After leaving the Navy, Wife
Husband held various jobs during the marriage, including auto body work, and heating and air conditioning work. At the time of trial, he was doing auto body work and had been employed for a year and a half. His wages for 2015 totaled $38,064.69.
In the course of the marriage, Husband displayed bellicose and violent behaviors toward Wife. On at least two occasions, Husband hit Wife. Husband would go on "verbal rampages" against Wife, often in front of the children. In such instances, the children would become scared, run to their
When C.A.S. was two, he began sleeping with Husband and Wife in the marital bed.
After Husband moved to the basement, he had little contact with the children. He attended very few school events or extracurricular activities, leaving the parenting duties to Wife. Both children were involved in competitive dance, particularly C.A.S. Wife took the children to regular dance practices and competitions. Husband had no substantive involvement with C.A.S., particularly with his dance activities. He also failed to attend parent-teacher conferences and school open houses for C.A.S. Husband also contributed very little to the children's support, leaving Wife the burden of meeting the children's needs. Wife paid, among other expenses, costs associated with the children's health and dental insurance, accidental insurance for C.A.S., and $465.00 per month for C.A.S.'s dance expenses.
In 2010, Husband was involved in a motorcycle accident when he collided with a FedEx truck. Husband sustained scrapes, bruises, and a broken wrist. Husband was released to return to work after a few weeks, but refused Wife's requests do so because he "thought that if he didn't go back to work," they "would get more money." From 2010 until 2014, Husband mowed a few lawns, did some side auto body repair work, and received some unemployment funds. Husband kept the money he made from mowing lawns and the auto body repair work for himself, and only deposited the unemployment funds in the couple's joint account.
During this time, Wife was paying all of the household expenses, relying heavily on credit cards at Husband's urging. Husband insisted that once he received a settlement for his accident, the money would be used to pay off the credit cards. Wife incurred substantial credit card debt as a result. Husband also utilized credit cards, but used the cards for personal rather than family expenses. Husband's parents occasionally deposited money into the couple's joint bank account to help with expenses.
In March 2012, Husband settled the personal injury lawsuit arising out of the motorcycle accident, and received net settlement proceeds of $103,076.72. The funds were initially deposited in Husband and Wife's joint account, pending a temporary hold until the funds could be released for joint use by the parties. However, Husband's father persuaded a senior vice president at the bank to remove the hold, and Husband then wrote a check to his mother for $25,000.00, and a check to his father for $50,000.00. Husband's mother in turn wrote a check for $56,000.00, and used it to open a checking account in her name, but the account was for Husband's exclusive use. Husband's purpose in having the account opened was to prevent Wife from having any access to these funds, and so that Husband could conduct whatever financial transactions he wanted without Wife's input or interference.
Because of Husband's actions, in 2012, the parties stopped operating from a joint checking account. Wife provided Husband with a list of expenses relating to the children, and requested Husband's assistance in paying them. Husband refused, and even declined to contribute toward the children's clothes and school lunches. He also decided, after he obtained his settlement, that he would no longer contribute any money toward groceries because Wife and his children "wasted so much food that I — I just couldn't deal with that anymore[.]"
Husband initially paid some marital bills out of the $56,000.00, including mortgage payments on the marital home, utilities, and credit cards. Husband also paid for Wife's car insurance in exchange for Wife keeping Husband on her healthcare insurance. However, at one point, Husband refused to pay the propane bill, and the propane company locked the propane tank, which left the family with only a pellet stove as a source of heat for the entire house.
Husband then squandered a significant amount of the settlement funds on personal entertainment such as online gambling, as well as betting on horse races and football games through a bookie.
Also in 2012, Husband threatened to kill wife. Wife sought an ex parte order of protection, which she subsequently dropped.
After K.M.S.'s graduation from high school, Wife wished to take the children on a cruise. Husband refused to consent and sign the necessary paperwork for the children to obtain passports. He later suggested he would have consented if the children were to "grovel[] a little bit."
In February 2014, Husband obtained a check for $1,200.00 from the couple's joint investment account at Edward Jones. The check was payable to Husband and Wife, but Husband forged Wife's signature on the check, and then deposited the check into his separate account on March 4, 2014.
Husband filed for divorce on March 20, 2014. Wife filed an answer and a "Counter Petition for Dissolution of Marriage." Husband subsequently returned to work and was ordered to pay temporary child support in the amount of $665.00 per month for the support of the couple's two children, which Husband did not voluntarily pay so that Wife was forced to garnish his wages.
Soon thereafter, Husband stopped paying the insurance on K.M.S.'s car. He did not inform Wife, but instead texted his daughter, stating: "I hope you're not driving your car, because you don't have insurance on it[.]"
As part of the marital property, Husband and Wife owned a house and real estate they used for rental income. Wife actually acquired this property in 1994, prior to the marriage, but in 2002, added Husband's name to the title of the property when they began using it as rental property. A mortgage remained on the property, which Wife continued to pay. For a time, both Husband and Wife were involved in the rental property. In 2012, after the couple separated their finances, Husband told Wife, "I'm not going back over there. You know what? It's all yours. I'm done[.]" Thereafter, without any help from Husband, Wife made the necessary repairs on the rental property, performed all business matters related thereto, and
In May 2014, Husband repaired the radiator in Wife's car, for which he sent her an invoice for his labor. At the end of the invoice, he handwrote a note: "I want my money. If I don't get it, I will put a hole in your new radiator." Husband subsequently attempted to explain this note by suggesting he performed the work on a Saturday, it was hot, Wife was unable to take the car anywhere else because "they wouldn't do it for free," and "all [Wife] did was pay for the radiator."
Also in May 2014, Husband stopped paying the mortgage on the marital home, but did not tell Wife. He received a delinquency/foreclosure notice from the mortgage company, and a notice to vacate, but again did not inform Wife. In October 2014, Wife learned through a friend at an insurance company that her house had been sold at a foreclosure sale 20 days prior, and that there was a letter of eviction for the family's removal from the marital home.
Unaccustomed to foreclosure and post-foreclosure proceedings, and fearing that her things and those of her children would be put out in the yard if she did not vacate the marital house immediately, Wife quickly found a new place to live, and moved out by November 6, 2014. C.A.S. was devastated when he learned he would have to move from the only home he had known, and that Husband had "never said a word to him" about it. Wife did all the packing for the move in the evenings after she finished taking the children to their dance activities. Husband did not assist at all in this endeavor. When Wife and the children moved, Husband again gave no assistance, and Wife was forced to rely on friends to move the family's belongings.
Husband remained in the marital house for several more months without making any payments or arrangements for his continued occupancy of the home. In December 2014, an unlawful detainer action was filed against both Husband and Wife for Husband's continued occupancy of the house. Despite Husband being served with this action, which listed Wife also as a defendant, Husband did not inform Wife. Wife was never personally served, and when she learned of the action, incurred attorney's fees defending herself even though she had vacated the house.
Since 2014, Husband removed himself entirely from C.A.S.'s life. Husband spent between two and three minutes a month with C.A.S., and texted him approximately once a month. In November 2014, the guardian ad litem requested Husband attend a dance performance in which C.A.S. was participating. Husband watched one dance, and then left. C.A.S. looked for Husband as soon as he was done dancing, but Husband had already left.
A two-day trial commenced on May 31, 2016. On August 2, 2016, the trial court entered its "Judgment and Decree of Dissolution of Marriage." The trial court awarded the parties joint physical custody of the children, with Wife having sole legal
The trial court awarded to Wife non-marital furniture and personal property in the amount of $761.00; the children's furniture and personal property in the amount of $400.00; and marital property in the amount of $231,078.14.
The trial court awarded to Husband non-marital furniture and personal property in the amount of $3,286.00. Husband was awarded marital property in the amount of $6,525.00, and was ordered to pay $30,775.82 of the marital debt.
The trial court acknowledged that the division of property and debt weighed in favor of Wife, but that
Husband filed a motion for rehearing and a motion to amend judgment, both of which were denied. This appeal followed.
In two points on appeal, Husband argues:
The issues for our determination are:
In his first point, Husband argues that the trial court erred in dividing the marital property, in that the trial court failed to properly consider: (1) the economic circumstances of each spouse, and (2) the contribution of each spouse to the acquisition of the marital property. For ease of analysis, we address these factors out of order.
As an initial matter, we note that Husband's first point and companion argument fail to properly classify their purported grievances into one of the standards for reversal in a court-tried case: that there was a lack of substantial evidence, the judgment was against the weight of the evidence, or the court erroneously declared or applied the law.
The standard of review in civil cases contemplates two types of arguments regarding the factual basis for a trial court's judgment: a challenge that the decision is not supported by substantial evidence, and a challenge that the decision is against the weight of the evidence.
Even if Husband's argument were preserved, his argument would be unavailing because it fundamentally misapprehends the nature of the section 452.330.1 factors. Section 452.330.1 governs the distribution of property in a dissolution case, and 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[.]" These factors are:
Section 452.330.1. The statutory factors of section 452.330.1 are not exclusive, and the trial court has the discretion to look beyond these factors in arriving at an appropriate division.
With respect to the section 452.330.1(2) factor, considering the respective contributions of each spouse, Husband points to various pieces of evidence, suggests that the trial court should have credited each piece of evidence, and then argues that on that basis, the trial court should have awarded him more property in the division. It is true that the trial court is required to "consider" certain factors based on section 452.330.1. However, Husband's argument runs afoul by presupposing that in "considering" those factors, the trial court is required to give credence
Further, Husband's "divide and conquer" approach to the section 452.330.1 factors, analyzing the evidence as to individual factors in isolation rather than as a whole, misapprehends the nature of the non-exclusive, multi-factor test under section 452.330.1. As our Western District accurately noted in an attempt by another appellant to challenge a section 452.330.1 distribution by challenging the trial court's treatment of a factor individually:
As
Husband's argument as to the economic-circumstances factor fares no better. Husband argues, for instance, that the trial court's distribution is in error because: "[i]t appears [Wife]'s economic circumstances are better than [Husband]'s. The factor favors [Husband] and the trial court did not consider it." This line of argument completely fails to consider our standard of review. Again, only credited evidence must be considered in the context of the section 452.330.1 factors.
We note that even if we were to take the thrust of what we discern to be Husband's argument and apply it more properly within the bounds of Rule 84.04, our standard of review, and principles of appellate review, Husband's challenge would still fail. The gist of Husband's argument is that the property division unduly favored Wife, and that the trial court reached that errant outcome by failing to properly consider the evidence in context of the section 452.330.1 factors.
The judgment indicates that the trial court "considered all relevant factors, including, but not limited to, the specific factors set forth herein." The trial court acknowledged that it was awarding the "lion's share" of the marital assets to Wife, but was doing so because this was "fair and equitable under the circumstances of the case." In doing so, the trial court took explicit consideration of the following,
Further, we must presume that the trial court credited the remaining evidence in the record favorable to the distribution in
For all of these reasons, Husband fails to convince us there was insufficient evidence to support the trial court's distribution, or that the distribution was against the weight of the evidence, or that the trial court committed any error of law. Point I is denied.
In his second point, Husband argues that the trial court erred in that there was "no credible or substantial evidence to support numerous findings" regarding Husband's negative conduct, and that the trial court wrongfully ignored evidence of Husband's positive conduct.
To the extent Husband challenges the credibility determinations of the trial court, we wholly reject his argument. Our standard of review dictates that we defer to the trial court on matters of credibility.
The remainder of Husband's second point suffers from the litany of analytical defects we discuss supra with respect to Husband's first point. We confine our commentary to the brief observations that: (1) Husband fails to follow the mandatory analytical sequence set forth by
The judgment of the trial court is affirmed.
NANCY STEFFEN RAHMEYER, C.J., P.J. — Concur
DANIEL E. SCOTT, J. — Concur.
All rule references are to Missouri Court Rules (2017).