Daniel Navarro v. Marisa Navatto

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
DANIEL NAVARRO, )
)
Respondent, )
) WD79513
v. )
) OPINION FILED:
) November 22, 2016
MARISA NAVARRO, )
)
Appellant. )
Appeal from the Circuit Court of Platte County, Missouri
The Honorable James W. Van Amburg, Judge
Before Division Two: Lisa White Hardwick, Presiding Judge, and
Karen King Mitchell and Anthony Rex Gabbert, Judges
Marisa Navarro (Wife) challenges the trial court’s dissolution judgment, judgment of
contempt for failing to turn over certain marital property to Daniel Navarro (Husband), and the
trial court’s distribution of marital property.1 Finding no error, we affirm.
Background2
Husband and Wife were married in July 1991 and had two children during the marriage.
They separated in 2012, after Husband filed a petition for dissolution of marriage. In response,
1
Wife has appealed this matter to us before, most recently in Navarro v. Navarro, 465 S.W.3d 912, 913
(Mo. App. W.D. 2015), from which we draw liberally for factual and procedural background without further
attribution.
2
“We view the evidence and all permissible inferences in the light most favorable to the judgment and
disregard all contrary evidence and inferences.” England v. England, 454 S.W.3d 912, 915 n.1 (Mo. App. W.D. 2015)
(quoting Sparks v. Sparks, 417 S.W.3d 269, 276 n.1 (Mo. App. W.D. 2013)).
Wife filed an answer and counter-petition. Both Husband and Wife requested an equitable division
of the marital property.
A trial was held on the dissolution petition and counter-petition on May 1, 2013, and
May 23, 2013. At the conclusion of the trial, the court made a number of oral statements
concerning child custody, support, attorney fees, and the division of property. Specifically, with
regard to the marital property, the court stated that it wanted “the property divided between the
parties at a 50/50 split,” and directed Husband’s counsel to prepare a written judgment. The court
entered the written judgment on June 24, 2013. Among other things, the judgment awarded the
marital home to Wife on the condition that she refinance it and pay Husband half of the proceeds
of refinancing in excess of the debt owed on the house. Specifically, the judgment “granted [Wife]
until July 7, 2013 to refinance or vacate the residence.” If Wife either failed or was unable to
refinance the home, it was to be sold no later than August 23, 2013, with the proceeds to be divided
equally between Husband and Wife. If the house was not refinanced or sold by August 23, 2013,
the court indicated that it would “appoint a special master to oversee the sale of said real estate.”
On July 16, 2013, Husband filed a motion for contempt, in which he asked the court to find
Wife in contempt of the portion of the judgment concerning the disposition of the marital
residence, in that Wife had not refinanced or vacated the home. Among other things, Husband
requested that Wife be compelled to vacate the residence and ordered to pay costs and attorney
fees associated with the contempt motion. Wife filed a response to the contempt motion and also
filed a motion for new trial. One of Wife’s allegations in her new trial motion was that the written
judgment failed to distribute all of the marital assets, namely, Husband’s retirement plan. The
court entered an amended dissolution judgment on September 3, 2013, but the only change made
2
to the property division concerned the disposition of the marital residence, requiring that, if it is
sold at a loss, the loss would be split evenly.
Wife filed a notice of appeal of the amended dissolution judgment and a second motion for
new trial. In her second motion for new trial she again alleged, among other things, that the
amended dissolution judgment omitted Husband’s retirement plan. After hearing arguments from
counsel for both parties, the circuit court denied Wife’s second motion for new trial. This court
subsequently dismissed Wife’s appeal of the amended dissolution judgment after finding that the
judgment was not final and appealable because Husband’s contempt motion, his request for leave
to file an amended contempt motion, and his request for attorney fees on appeal remained pending.
After Wife’s first notice of appeal was dismissed, the circuit court allowed Husband to file
an amended motion for contempt. In his amended motion, Husband asked the court to hold Wife
in contempt of the amended dissolution judgment for refusing to refinance or to vacate the marital
residence, refusing to relinquish personal property awarded to him, and refusing to pay his attorney
fees as ordered in both dissolution judgments. Following a hearing, the court granted Husband’s
amended motion and found Wife to be in contempt of the amended dissolution judgment.
Specifically, the court found that Wife had failed to refinance or vacate the marital residence by
the deadline established by the judgment, that she had failed to surrender to Husband certain
personal property, and that she had failed to pay $1,000 in attorney fees. As to the personal
property and attorney fees, the Wife was ordered to comply with the terms of the judgment by
August 8, 2014.3 A special master was appointed to sell the real estate, with his fees and all
expenses related to the sale to be paid out of the sale proceeds. Wife appealed both the amended
dissolution judgment and the contempt judgment. This court again dismissed the appeal as not
3
The sole exception to the court-ordered compliance was related to two pieces of personal property that had
been awarded to Husband that Wife testified had either been sold or reclaimed by Husband.
3
final because the trial court had not divided Husband’s retirement plan. Navarro v. Navarro, 465
S.W.3d 912, 915 (Mo. App. W.D. 2015).
On remand, the trial court entered a second amended dissolution judgment, which made no
changes to the division of marital property other than dividing Husband’s retirement plan equally.
The second amended judgment set monetary values for the residence, vehicles, retirement plan,
and debts, but did not state values for much of the personal property. Wife appeals both the second
amended judgment and the contempt judgment.
Standard of Review
“We will affirm the trial court’s judgment of dissolution of marriage unless there is no
substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares
or applies the law.” Herschend v. Herschend, 486 S.W.3d 346, 351 (Mo. App. S.D. 2015). “We
view the evidence and permissible inferences therefrom in the light most favorable to the trial
court’s judgment and disregard all contrary evidence and inferences.” Id. “The court is free to
disbelieve any, all, or none of the evidence, and we may not re-evaluate the evidence through our
own perspective.” Id.
Analysis
In her six points, Wife claims that the trial court erred in: (1) failing to divide the marital
assets equally, in accordance the trial court’s oral pronouncement at trial; (2) overruling Wife’s
motion for new trial without hearing evidence, which would have showed that the assets were not
divided equally per the trial court’s oral pronouncement; (3) finding Wife in contempt of the
amended judgment of dissolution because the judgment was “a nullity due to [the] failure to
accurately recite the [trial] court’s previous, unambiguous oral pronouncement”; (4) finding Wife
in contempt, because Husband’s motion for contempt was not an authorized after-trial motion; (5)
4
finding Wife in contempt, because the amended judgment, upon which she was held in contempt,
was not a final judgment; and (6) dividing the marital assets in a manner that unfairly favors
Husband.
I. Whether the judgment conforms to the trial court’s oral pronouncements does not
affect the judgment’s validity.
Because Wife’s first two points both depend on her contention that the second amended
judgment is “a nullity” due to its failure to strictly follow the trial court’s oral pronouncements,
we review those claims together.
Neither party requested written findings. While a trial court must make findings on child
custody, J.D. v. L.D., 478 S.W.3d 514, 517 (Mo. App. E.D. 2015), “[u]nless a request is made, the
trial court is not required to make specific findings as to the value of items of marital property.”
Steele v. Steele, 423 S.W.3d 898, 908 (Mo. App. S.D. 2014) (quoting In re Marriage of Rippee,
862 S.W.2d 493, 494 (Mo. App. S.D. 1993)). Nevertheless, the trial court did enter a lengthy
judgment, in which it made gratuitous findings as to the value of much of the marital property and
debts, though it did not set values for the personal property.
Wife argues that the trial court unambiguously pronounced at trial that the marital property
should be divided evenly, but she claims that the judgment failed to do so. Wife argues that, due
to its failure to comply with the oral pronouncement, the judgment is “a nullity.” 4 For support,
wife cites Johnson v. State, 446 S.W.3d 274 (Mo. App. E.D. 2014), a post-conviction relief case
addressing a criminal sentence, in which the court correctly noted that, “[w]hen a [trial] court’s
written sentence materially differs from the formal oral pronouncement of sentence, the formal
4
Of course “the Initial Judgment was rendered a nullity with the entry of the First Amended Judgment, and
the First Amended Judgment was rendered a nullity with the entry of the Second Amended Judgment.” State ex rel.
Mo. Parks Ass’n v. Mo. Dep’t of Nat. Res., 316 S.W.3d 375, 382 (Mo. App. W.D. 2010); Rule 78.07(d). But this is
not the ground upon which Wife challenges the judgment. The trial court also entered a Judgment of Contempt, but
it is clear that Wife’s first two points on appeal are not addressing the contempt judgment.
5
oral pronouncement controls if it is unambiguous.” Id. at 276. Wife claims that Johnson is
“analogous” to the present situation.
Wife’s reliance on a case addressing sentencing in a criminal context is misplaced. Here,
the court entered a civil judgment. And in civil matters, “Rule 73.01(c) requires that when there
are no written findings, the evidence shall be considered as having been found in accordance with
the result reached; in other words, in the light most favorable to the judgment.” Harvey v. Dir. of
Revenue, 371 S.W.3d 824, 828 (Mo. App. W.D. 2012) (internal quotation omitted). Indeed, Wife’s
reliance on criminal procedure is particularly troubling because “there is no analogue to
Rule 73.01(c) in Missouri’s rules of criminal procedure.” State v. Renfrow, 495 S.W.3d 840, 849
n.2 (Mo. App. W.D. 2016) (Ahuja, P.J., dissenting). Under Rule 73.01(c), “the general rule [is]
that ‘oral comments should not be considered where findings of fact and conclusions of law have
not been requested but are gratuitously provided by the trial court.’” Scholz v. Schenk, 489 S.W.3d
306, 311 (Mo. App. W.D. 2016) (quoting Harvey, 371 S.W.3d at 827). “Gratuitous ‘oral
pronouncements,’” such as the one made at trial, “are not part of the trial court’s order or judgment
and may be considered only as an explanation of the order or judgment.” Id. (quoting Harvey, 371
S.W.3d at 828). “Certainly, [w]here a judgment is ambiguous, uncertain, or incomplete, an
appellate court may properly look . . . to the contemporaneous oral statement of the judge, [insofar]
as the same may throw light upon the view the court took of the case during its progress and at the
time of its [judgment].” Id. at 312 (internal quotations omitted). But Wife does not allege that the
written judgment is ambiguous, uncertain, or incomplete as it relates to the distribution of property.
Rather, she simply seems to believe that the written judgment is inconsistent with the court’s earlier
oral pronouncement.
6
Wife is left with nothing supporting her contention that the judgment is “a nullity,” based
on the alleged failure to follow the trial court’s oral statements. This “failure to cite any authority
supporting [her] position [is] sufficient to deny [Wife’s] claim.” WCT & D, LLC v. City of Kansas
City, 476 S.W.3d 336, 343 (Mo. App. W.D. 2015). Wife points to no analogue in civil cases, and
offers “no argument why we should disregard the general rule that ‘oral comments should not be
considered where findings of fact and conclusions of law have not been requested but are
gratuitously provided by the trial court.’” Scholz, 489 S.W.3d at 311 (quoting Harvey, 371 S.W.3d
at 827).
Even if we were to assume that the judgment failed to divide the marital property equally
in accordance with the trial court’s oral pronouncement at trial—a finding we do not make—we
reject Wife’s claim that this failure rendered the second amended judgment “a nullity.” Because
Wife’s first two points both rely on this unfounded argument, they are denied.
II. The order of contempt is not final.
Because Wife’s third through fifth points all challenge the trial court’s contempt judgment,
we also review these points together. In her third point, Wife again argues that the judgment upon
which she was held in contempt—the first amended dissolution judgment—is a nullity due to the
failure to follow the trial court’s oral pronouncements.5 In her fourth point, Wife argues that the
trial court erred in finding Wife in contempt, because Husband’s motion for contempt was not an
authorized after-trial motion. In her fifth point, Wife argues that the contempt judgment was
erroneous because the first amended dissolution judgment, on which the contempt judgment is
5
Although not critical to our analysis, we note that we do not agree with Wife’s conclusion that the written
judgment is inconsistent with the court’s oral statement that it intended to divide the marital property evenly. “[T]he
trier of fact has the right to believe or disbelieve [either] party’s . . . evidence.” England, 454 S.W.3d at 919 (quoting
White v. Dir. of Revenue, 321 S.W.3d 298, 305 (Mo. banc 2010)). Accordingly, it is sufficient to note that the trial
court simply may not have believed that the valuations of the distributed personal property were what Wife argues
they should have been and, instead, believed that the second amended judgment did dispose of the property equally.
7
based, was not a final judgment for purposes of appeal.6 Because the contempt judgment is not
final for purposes of appeal, we dismiss the points.
“If a judgment of contempt is not final, ‘this Court lacks jurisdiction and must dismiss the
appeal.’” Davis v. Davis, 475 S.W.3d 177, 181 (Mo. App. W.D. 2015) (quoting In re Marriage of
Crow and Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003)). And “civil contempt orders, even if
denominated as a ‘judgment,’ are not final for purposes of appeal until they are enforced, either
through the imposition of fines or imprisonment.” In re Estate of Pethan, 475 S.W.3d 722, 729
n.6 (Mo. App. W.D. 2015). “When ‘enforcement’ occurs depends on the remedy.” Crow, 103
S.W.3d at 781. “When the remedy is a fine, the contempt order is ‘enforced’ when the moving
party executes on the fine.” Id. “When the remedy is imprisonment, the traditional rule is that the
contempt order is ‘enforced’ when there is ‘actual incarceration pursuant to a warrant [or order] of
commitment.’” Id. (quoting In re Marriage of Beaver, 954 S.W.2d 717, 721 (Mo. App. S.D.
1997)).
6
Wife again offers no relevant authority in support of these points. As to Wife’s third point, as noted above,
Wife has provided no authority for her assertion that the failure to follow oral pronouncements renders a civil judgment
a nullity. In her fourth point, Wife offers authority that a motion for contempt is not an authorized after-trial motion,
but no authority that a motion for contempt must be such a motion. Wife apparently erroneously believes that every
motion filed after judgment is entered must be an authorized after-trial motion. While a contempt “proceeding is
auxiliary to the main case in that it proceeds out of the original case, it is essentially a new and independent proceeding
in that it involves new issues and must be initiated by the issuance and service of new process.” Reed v. Reed, 10
S.W.3d 173, 180 (Mo. App. W.D. 1999) (quoting Odom v. Langston, 213 S.W.2d 948, 951 (Mo. banc 1948)). On the
other hand, an authorized after-trial motion “extends the circuit court’s control over its judgment for up to 90 days
from the date the motion was filed.” Developers Sur. & Indem. Co. v. Woods of Somerset, LLC, 455 S.W.3d 487, 491
(Mo. App. W.D. 2015) (quoting Hanna v. Hanna, 446 S.W.3d 753, 755 (Mo. App. W.D. 2014)). Thus, the two
motions have wholly separate objectives: a contempt motion creates a new proceeding, while an authorized after-trial
motion extends the trial court’s jurisdiction over the pending proceeding.
Similarly, in her fifth point, Wife offers authority in support of only her contentions that neither the initial
judgment nor the amended judgment were final, appealable judgments—facts of which this court is well aware, having
dismissed Wife’s prior two appeals for precisely those reasons. Navarro, 465 S.W.3d at 914, 915. But Wife offers
no authority suggesting that contempt is available only to compel compliance with final, appealable judgments. “The
purpose of a civil contempt order is to compel compliance with the relief granted in an order, judgment, or decree.”
Jones v. Jones, 296 S.W.3d 526, 528 (Mo. App. W.D. 2009) (emphasis added). And under Missouri Supreme Court
Rule 74.02, “Every direction of a court made or entered in writing and not included in a judgment is an order.” An
order, by definition, is not a final judgment, yet is enforceable by civil contempt. Wife’s argument that contempt is
applicable only to final judgments therefore fails.
8
Here, the judgment of contempt contains neither fines nor an order of commitment. Indeed,
it orders Wife only to do what she was previously ordered to do in the initial and the first amended
judgment, without imposing any actual punishment. Wife points to nothing in the record showing
that she was ever under the threat of either imprisonment or any monetary penalty arising from the
contempt judgment, much less that Husband ever executed on any monetary penalty or that the
trial court ever issued an order of commitment.7 Accordingly, the contempt judgment is not final
and we dismiss Wife’s third through fifth points.
III. Trial court did not abuse its discretion is distributing the property.
In her final point, Wife argues that the trial court abused its discretion because the
“judgment divides the marital assets and debts in a manner which clearly and unfairly favors one
party.” We disagree.
“Section 452.330, which governs the division of property in a dissolution proceeding,
mandates a two-step process to be followed by the trial court: (1) the court must first set aside to
each spouse his or her non-marital property; and (2) then divide the marital property.” Nelson v.
Nelson, 25 S.W.3d 511, 516-17 (Mo. App. W.D. 2000). In dividing the marital property, the trial
court must “consider[] all relevant factors” set forth in § 452.330 in determining a proper division
of the marital property.
Wife does claim in her statement of facts that Husband “execute[d] on the” contempt judgment, presumably
7
referring to Husband showing up at the residence with local law enforcement to collect his personal belongings. Wife
never makes this argument in the argument section of her brief and has waived it. “Any claim of error . . . which is
not addressed in the appellant’s argument is deemed waived.” In re M.B.R., 404 S.W.3d 389, 394 (Mo. App. S.D.
2013) (quoting G.J.R.B. ex rel. R.J.K. v. J.K.B., 269 S.W.3d 546, 559 (Mo. App. S.D. 2008)). Nevertheless,
“[e]xecution efforts to enforce a coercive fine are distinguishable . . . from execution efforts to enforce the underlying
payment obligation giving rise to the contempt order.” Emmons v. Emmons, 310 S.W.3d 718, 724 n.4 (Mo. App.
W.D. 2010). “Collection efforts to enforce payment obligations . . . are not ‘enforcement’ mechanisms designed to
coerce performance of the contempt order,” and are insufficient to make a contempt judgment final for purposes of
appeal. Id. Rather, contempt judgments “are not final for purposes of appeal until they are enforced, either through
the imposition of fines or imprisonment.” In re Estate of Pethan, 475 S.W.3d 722, 729 n.6 (Mo. App. W.D. 2015).
9
Wife does not cite § 452.330 or any of its factors, nor does she offer any analysis or
argument as to how the trial court failed to adequately consider any factor. Rather, Wife simply
claims that Husband was awarded, after subtracting debt, $9,935.50, while Wife received only
$5,334.50. Without argument or citation to authority, Wife then jumps to the conclusion that the
distribution “is sufficiently excessive, is so unfairly favorable to one party, as to constitute an abuse
of the trial court’s discretion.”
There are a number of holes in Wife’s argument, not the least of which is that she has failed
to include any of the trial exhibits, establishing the value of various property, in the record on
appeal. Instead, Wife points to various asset-and-income statements that were attached to the
parties’ pleadings or produced in her appendix. But “we have no way of confirming that . . .
any . . . exhibit attached to a pleading, is identical in form to the corresponding exhibit introduced
at trial.” R.K. Matthews Inv., Inc. v. Beulah Mae Hous., LLC, 379 S.W.3d 890, 893 n.2 (Mo. App.
W.D. 2012). And “[t]he appendix is not part of the legal file or otherwise part of the record on
appeal.” Curry Inv. Co. v. Santilli, 494 S.W.3d 18, 30 n.9 (Mo. App. W.D. 2016) (quoting Bison
Park Dev., LLC v. N. Am. Sav. Bank, F.S.B., 399 S.W.3d 877, 882 n.7 (Mo. App. W.D. 2013)).
“It is the appellant’s burden to supply the record necessary for our review.” R.K. Matthews, 379
S.W.3d at 893 n.2 (quoting Wagner v. Bondex Int’l, Inc., 368 S.W.3d 340, 357 (Mo. App. W.D.
2012)). “Where . . . exhibits are not made a part of the record on appeal, such evidentiary omissions
will be taken as favorable to the trial court’s ruling and unfavorable to the appeal.” Id. (quoting
Wagner, 368 S.W.3d at 357).
Further, even if Wife had filed the exhibits, the trial court was not required to believe the
entirety of either party’s evidence. See note 5, supra. Moreover, at trial, Wife admitted that she
pawned a gold chain and bracelet belonging to Husband because “he [did] not deserve [them].”
10
According to the numbers Wife has provided in her appendix, those items are valued at a combined
$5,000. With $5,000 deducted from Husband’s total, Wife actually received the greater portion of
the marital assets. In any event, there is no requirement that a trial court distribute all marital assets
and debts equally. Rather, the trial court “shall divide the marital property and marital debts in
such proportions as the court deems just after considering all relevant factors.” § 452.330.1. And
we will reverse the trial court’s distribution of property “only when the division so unfairly favors
one party that it amounts to an abuse of discretion.” Kelly v. Kelly, 340 S.W.3d 673, 676 (Mo.
App. W.D. 2011) (quoting Wisdom v. Wisdom, 316 S.W.3d 499, 501 (Mo. App. W.D. 2010)).
Wife is unable to point to anything in the record showing that the trial court either failed to
adequately review all of the factors or abused its discretion.
Wife’s final point is denied.
Conclusion
Finding no error, we affirm the trial court’s second amended judgment of dissolution.
Karen King Mitchell, Judge
Lisa White Hardwick, Presiding Judge, and
Anthony Rex Gabbert, Judges, concur.
11