Shelbie Torres v. Alejandro Raul Torres

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
SHELBIE TORRES, )
)
Respondent, )
WD82498
v. )
)
OPINION FILED:
)
April 14, 2020
ALEJANDRO RAUL TORRES, )
)
Appellant. )
Appeal from the Circuit Court of Jackson County, Missouri
The Honorable Susan E. Long, Judge
Before Division Four: Karen King Mitchell, Chief Judge, and
Cynthia L. Martin and Edward R. Ardini, Jr., Judges
Alejandro Torres (Husband) appeals the property distribution portion of the amended
judgment dissolving his marriage to Shelbie Torres (Wife).1 Husband raises three points on
appeal, all pertaining to the trial court’s order that Husband pay Wife $302,300.50 to equalize the
distribution of marital property. Husband argues that the court erred in ordering the equalization
payment because the court (1) misapplied Missouri law governing when equity in a spouse’s
non-marital company can be deemed marital property; (2) lacked substantial evidence to support
1
Husband does not challenge the trial court’s award of custody, child support, spousal maintenance, or
professional fees.
its finding that Husband’s business has a marital value of $348,965.00; and (3) failed to subtract
the $234,554.00 mortgage on the marital home from the calculation of the net marital estate before
calculating the equalization payment. We affirm the trial court’s holding that the increase in the
value of Husband’s non-marital company during the marriage is marital property, but we reverse
and remand for the court to clarify the effect of the $234,554.00 marital liability on the calculation
of the equalization payment.
Background2
The parties were married on October 12, 2013, in Las Vegas, Clark County, Nevada, where
the marriage is registered. Three children were adopted or born during the marriage. The parties
separated after Wife discovered that Husband was involved in an extramarital relationship. Wife
petitioned for dissolution on April 4, 2017, and Husband filed a counter petition for dissolution on
May 1, 2017. On September 10 and 17, 2018, the matter came to trial.
In 2005, Husband opened a plumbing business as a sole proprietorship. In May 2013,
shortly before he married Wife, Husband converted his business to a single-member limited
liability company, Alex’s Plumbing, LLC (the Business), with Husband as the sole member. Wife
retained Michael McLain, a business appraiser and certified public accountant specializing in
business valuations, to calculate the value of the Business as of December 31, 2017. McLain
testified that he used both the asset-based method and the market-based method to value the
Business, which he opined was worth $475,506.00 under the asset-based approach (including
inventory) and $466,722.00 under the market-based approach. Based on the information available
to him, McLain concluded that the latter figure represented the fair market value of the Business.
2
“We view the evidence and reasonable inferences therefrom in the light most favorable to the decree and
disregard all evidence to the contrary.” Selby v. Selby, 149 S.W.3d 472, 482 (Mo. App. W.D. 2004).
2
McLain also testified that the value of the Business as of the date of the parties’ marriage was
$117,757.00.
Wife testified that she worked for the Business throughout the marriage, using an office in
the marital home where Husband worked and stored his business records.3 Wife kept all licenses
for the Business current. She assisted the Business in obtaining a federal tax identification number
in 2013 and a U.S. Department of Transportation (DOT) number in 2016.4 She typed all bids and
invoices and kept all insurance current. She also provided administrative assistance in connection
with the Business’s bid for its most lucrative contract. Wife did not receive compensation for the
work she performed for the Business, and she otherwise did not earn any income during the
marriage; she was the homemaker and primary childcare provider.
Husband testified that Wife spent “[p]robably 10 to 12” hours per week performing
“clerical work” for the Business. Wife continued to perform those duties for the Business until
August 2017 when Husband removed her from company emails and hired a full-time employee to
do the work previously performed by Wife; Husband pays that employee $400.00 per week or
$20,800.00 per year.
Husband further testified that, during the marriage, he withdrew money from a marital
savings account at his sole discretion to pay the Business’s bills when necessary to keep the
Business afloat. He stated,
Sometimes we’re on 30-day payouts, 60-day payouts, 90-day payouts, 180-day
payouts. So we might not—I’m not going to receive a check for 180 days. And
bills come due every 30 days. There’s mortgage, gas, lights, everything else, and
if there’s no money in Alex’s Plumbing account, I take it from this [marital savings]
3
Wife also worked for the Business, without compensation, before the parties were married, but we are
concerned with only the services Wife performed during the marriage. See Meservey v. Meservey, 841 S.W.2d 240,
246 n.4 (Mo. App. W.D. 1992).
4
Wife testified that she obtained the DOT number because the Business was incurring tickets in the amount
of “at least $2,000 a time” for operating vehicles over a certain weight.
3
account. And I move it to Alex’s Plumbing account to pay my bills. I’ve always
done that, and I continue—that’s how I run my business.
(Emphasis added.) There was no evidence that Husband reimbursed the marital savings account
for the withdrawals he made to cover the Business’s expenses.5
Husband also testified about an office/warehouse building located at 2625 East 9th Street
in Kansas City. The building, valued at $115,000.00, was purchased during the marriage, using
marital assets, and was used by the Business as a warehouse to store equipment and materials and
later as an office as well. Husband never claimed the building as a business asset for tax purposes,
and when Husband performed his own valuation of the Business’s assets, he did not include the
building. There was no evidence that the Business paid rent or otherwise compensated the marital
partnership for the Business’s use of the building.
The parties did not request specific findings of fact. On November 20, 2018, the court
entered its judgment, which included findings of fact and conclusions of law. Husband filed a
timely motion to vacate, amend, or set aside the judgment or in the alternative grant a new trial.
On December 18, 2018, the trial court entered its amended judgment denying Husband’s motion.
In its amended judgment, the court valued the “net marital estate” at $1,067,555.00, with
the assets assigned to Husband valued at $601,524.00 and the assets assigned to Wife valued at
$466,031.00. The only marital liability listed by the court was a $234,554.00 mortgage on the
marital home.6 The court assigned the marital home and the outstanding mortgage to Wife,7
5
For example, according to Husband’s testimony, during the months of May, June, and July 2018, he
transferred approximately $100,000.00 from the marital savings account to the Business’s account and used an
unspecified portion of that money to cover expenses of the Business.
6
The court concluded that the home was clearly a marital asset. Husband “did not present any evidence to
rebut the presumption that the entire value of the house was marital.” The court also concluded that the mortgage “is
a marital liability although the note is in [Husband’s] sole name.”
7
The court ordered Wife to “be 100% responsible for payment on the mortgage note in the approximate
amount of $230,000.00 beginning December 1, 2018 and . . . indemnify and hold [Husband] harmless for her failure
to do so.”
4
thereby reducing the value of Wife’s assigned assets to $231,477.00 (the value of the assets
assigned to Wife including the marital home ($466,031.00) minus the outstanding mortgage
($234,554.00)). The judgment then states, “Each party to receive 50%: $533,777.50. Husband
pays to Wife to equalize division: $302,300.50.”
The court awarded Husband the Business, along with the vehicles, machinery, inventory,
and supplies, valued at $466,722.00, as calculated by McLain. But the court determined that the
Business had a marital value of $348,965.00 ($466,722.00 minus $117,757.00, the value of the
Business at the time of the marriage). The court found that Wife worked for the Business
ten-to-twelve hours per week and that “she was instrumental in obtaining DOT tags and other
licenses necessary to operate the business.” The court also found that the office/warehouse
building used by the Business to store equipment and supplies was a marital asset. And the court
concluded that the marital savings account, which had a balance of $250,000.00 when Wife filed
her petition for dissolution, had been dissipated by Husband, in violation of an earlier restraining
order entered by the court. The court found that Husband
justified the use of nearly $215,000.00 from the [marital] account under the “usual
course of business” or “necessities of life” exceptions[, but Husband] did not notify
[Wife] of the proposed extraordinary expenditures or show an accounting to the
Court for all [such] expenditures [he] made.
The Court included the marital value of the Business ($348,965.00) in the property division
to form the basis of Husband’s equalization payment to Wife. The court stated, “In consideration
of the equitable division of the parties’ marital estate, the Court finds that to equalize the division
of property set forth above [Husband] shall pay to [Wife] the sum of $302,300.50.” The court
found its division of assets and debts to be “fair and equitable under the circumstances and . . . not
unconscionable.”
5
Following issuance of the amended judgment, Husband timely filed a motion to vacate,
amend, or set aside the amended judgment or in the alternative grant a new trial; the court denied
the motion “[a]fter careful consideration and for good cause shown,” offering no further
explanation for its division of marital assets and liabilities. This appeal follows.
Standard of Review
In a dissolution proceeding, we will affirm the trial court’s decision “unless it is not
supported by substantial evidence, it is against the weight of the evidence, or it erroneously
declares or applies the law.” Selby v. Selby, 149 S.W.3d 472, 482 (Mo. App. W.D. 2004). “We
defer to the trial court’s superior ability to view the witnesses and determine credibility; the court
is free to believe or disbelieve all, part or none of the testimony given by any of the witnesses.”
Klockow v. Klockow, 979 S.W.2d 482, 487 (Mo. App. W.D. 1998). “Consequently, we accept the
evidence and inferences favorable to the trial court’s ruling and disregard contrary evidence.” Id.
And, where the parties do not request specific findings of fact on an issue, we presume the trial
court entered its judgment on that issue in accordance with the applicable statutes. Krepps v.
Krepps, 234 S.W.3d 605, 615-16 (Mo. App. W.D. 2007).
“The trial court has substantial discretion in dividing marital property, and appellate courts
will not interfere unless the division is so heavily weighted in favor of one party to amount to an
abuse of discretion.” Russum v. Russum, 214 S.W.3d 376, 384 (Mo. App. W.D. 2007). “We
presume that the trial court’s division is correct and the party challenging it bears the burden of
overcoming that presumption.” Klockow, 979 S.W.2d at 488. “We will affirm the division of
property unless it is unduly weighted in favor of one party.” Selby, 149 S.W.3d at 482.
6
However, we will reverse where a judgment is based on inconsistent or ambiguous findings
that do not permit appellate review. Finest Place, Inc. v. Skidmore, 477 S.W.3d 745, 749 (Mo.
App. S.D. 2016).
Analysis
Husband raises three points on appeal.8 He argues that the trial court erred in ordering him
to pay Wife $302,300.50 to equalize the distribution of marital assets because (1) the order is based
on a misapplication of Missouri law governing when equity in a spouse’s non-marital company
can be deemed marital property (Point I); (2) there was insufficient evidence to support a finding
that the Business has a marital value of $348,965.00 (Point II);9 and (3) the court failed to subtract
the $234,554.00 mortgage on the marital home awarded to Wife from the calculation of the net
marital estate (identified in Husband’s opening brief as Point IV). Because Husband’s first two
points are so closely intertwined, we discuss them together.
In a dissolution proceeding, “the court shall set apart to each spouse such spouse’s
non[-]marital property and shall divide the marital property and marital debts in such proportions
as the court deems just.” § 452.330.1.10 Thus, “[a]n equitable division of property is predicated
on the proper classification of the parties’ property as either non-marital or marital.” Moore v.
Moore, 189 S.W.3d 627, 632 (Mo. App. W.D. 2006).
“As a general principle, property owned by one spouse prior to the marriage will remain
non-marital property and will be awarded to the owner of that property.” Collins v. Collins, 586
S.W.3d 282, 294 (Mo. App. W.D. 2019) (quoting Fox v. Fox, 552 S.W.3d 777, 788 (Mo. App.
8
In his opening brief, Husband raises four points, but in his reply brief, he asserts that his third point is now
moot, so we do not address Husband’s Point III on appeal.
9
Husband does not challenge the valuation of the Business per se; instead, he argues that the court erred in
calculating the portion of his ownership interest in the Business that is a marital asset.
10
All statutory references are to the Revised Statutes of Missouri (2017), unless otherwise noted.
7
E.D. 2018)). “Thus, the property is usually considered non-marital if a spouse owned it before the
marriage and retained title to it.” Id. (quoting Fox, 552 S.W.3d at 788).
Marital property is all property acquired by either spouse after the marriage except, among
other exceptions not relevant here, “[t]he increase in value of property acquired prior to the
marriage . . . , unless marital assets including labor[] have contributed to such increases and then
only to the extent of such contributions.” § 452.330.2(5). Thus, “non-marital property may be
characterized as marital property if evidence is presented that under the source[-]of[-]funds rule, a
party is entitled to a portion of the non-marital property.” Collins, 586 S.W.3d at 294; see also
Beckham v. Beckham, 41 S.W.3d 908, 912 (Mo. App. W.D. 2001) (discussing the
“source[-]of[-]funds” doctrine). “Under the source[-]of[-]funds rule, ‘any increase in the value of
separate property is marital property if marital assets or marital labor contributed to acquiring that
increase.’” Collins, 586 S.W.3d at 294 (quoting Selby, 149 S.W.3d at 484). At trial, the spouse
advocating application of the source-of-funds rule to characterize non-marital property as marital
property bears the burden of proving that there was an increase in value of the non-marital property
due to marital labor or other marital assets. Brooks v. Brooks, 911 S.W.2d 631, 633-34 (Mo. App.
E.D. 1995) (“non-owning spouse must show that her contributions were a causal factor in the
increase in value”).
Here, the Business is separate property because it was started by Husband before the
marriage. § 452.330.2. Substantial evidence supported the trial court’s finding that the value of
Husband’s ownership interest in the Business increased during the marriage; there was also
substantial evidence to support the court’s determination of the amount of that increase. At issue
is whether there is substantial evidence to support the court’s finding that the entire increase in
value ($348,965.00) is marital property because marital effort and marital property contributed to
8
the increase. Husband argues that the evidence is insufficient to support the court’s finding
because (1) the reasonable inference is that the value of Wife’s services to the Business during the
marriage is only $83,200.00; (2) there is no evidence of the rental value of the office/warehouse
building at 2625 East 9th Street; and (3) there is no evidence of the amount of marital funds used
by the Business.
With respect to marital labor,
Marital labor, effort, or services will entitle a spouse to a proportionate share of the
increase in value of the other spouse’s separate property only after comprehensive
substantiation. Entitlement to a share of the increased value based on marital effort
requires proof of (A) a contribution of substantial services;[] (B) a direct correlation
between those services and the increase in value;[] (C) the amount of the increase
in value;[] (D) performance of the services during the marriage;[] and (E) the value
of the services,[] the lack of compensation,[] or inadequate compensation.[]
Meservey v. Meservey, 841 S.W.2d 240, 245-46 (Mo. App. W.D. 1992). “The law refuses to
recognize services as substantial marital effort sufficient to create a marital interest in property in
the absence of proof of the value of the services and the connection between their performance
and any increased value of the property.” Moore, 189 S.W.3d at 634 (quoting In re Marriage of
Patroske, 888 S.W.2d 374, 379 (Mo. App. S.D. 1994)).
In Moore, the wife appealed the trial court’s classification of the increased value of
corporate stock separately gifted to her by her parents. Id. at 631. During the marriage, the net
stock value had increased substantially while the husband was president of the corporation, a
position for which he was undercompensated. Id. at 631-32. We found that husband’s
undercompensation had denied the marital partnership income, which was marital property. Id. at
634. “Husband diverted income from the marriage for the purpose of increasing the value of
non-marital assets . . . . In dividing the property, therefore, the trial court must consider whether
a proportionate share of the increase in value of the non-marital property resulted from Husband’s
9
contribution.” Id. (internal citation omitted). We concluded that “the marital portion of the
increased value should constitute the amount that Husband was inadequately paid for his thirteen
years as president.” Id. at 635.
Here, the trial court found that Wife worked for the Business doing uncompensated
“clerical work” ten-to-twelve hours per week and that “she was instrumental in obtaining DOT
tags and other licenses necessary to operate the business.” Wife did not offer evidence regarding
the value of her services. But Husband testified that Wife spent “[p]robably 10 to 12” hours per
week performing “clerical work” for the Business and that he had hired a full-time employee at a
salary of $400.00 per week or $20,800.00 per year to do the work previously performed by Wife.
Thus, there was substantial evidence to support a finding that, at a minimum, the value of Wife’s
work for the Business during the course of the marriage (October 2013 to August 2017, inclusive)
was approximately $83,200.00.11 Based on Wife’s testimony, which the court found credible,
there was substantial evidence to assign a higher value to Wife’s services for the Business because
she was instrumental in obtaining various licenses necessary to operate the Business. Specifically,
Wife assisted the Business in obtaining a required federal tax identification number and DOT
number, which the Business needed to avoid significant fines. Wife also kept all the Business’s
licenses and insurance current. Thus, the record supports a finding that Wife’s services added
considerable value to the Business, yet she did not receive any compensation for her services.12
Under the source-of-funds rule, courts also consider whether marital assets, other than
marital labor, contributed to the increase in the value of non-marital property. “While a marital
11
In his reply brief, Husband admits, “Indeed a reasonable inference can be made that the value of [Wife’s]
effort to the Business was $20,800 per year” or $83,200.00 during the marriage.
12
Neither party argues that Husband’s labor on behalf of the Business was marital property, presumably
because, during the marriage, Husband was well compensated by the Business and his compensation was treated as
marital property.
10
interest in separate property can require proof that a spouse contributed substantial services
towards the property which led to an increased value of that property, this type of proof is not
needed . . . when the marital partners sacrifice marital funds . . . in acquiring the increase.” In re
Marriage of Rogers, 300 S.W.3d 567, 577 (Mo. App. S.D. 2009) (quoting McKown v. McKown,
108 S.W.3d 180, 184 (Mo. App. W.D. 2003) (emphasis in original) (internal citation and
quotations omitted)). In Rogers, the Southern District of this court found that marital contributions
made by expending marital funds for improvements to separate property and to reduce debt on the
property provided a causal connection between an increase in the net worth of the property during
the marriage and a substantial marital contribution. Id.; see also McKown, 108 S.W.3d at 184-85
(finding husband was obligated to give wife a portion of the increased equity in property he
acquired before the marriage where the mortgage on the property was paid out of the parties’ joint
checking account using marital funds); Rhodus v. McKinley, 16 S.W.3d 615, 618-19 (Mo. App.
W.D. 2000) (where husband sold marital property and used the proceeds to pay off a $53,500
business debt, the trial court properly applied the source-of-funds rule to find that the $53,500
increase in the value of the business was marital property).
Here, there was evidence that, during the marriage, the parties purchased the building
located at 2625 East 9th Street, which the Business used to store equipment and materials and later
as an office as well. There was no evidence that the Business compensated the marital partnership
for use of that building, however. Although there was no evidence of the exact rental value of the
building, we know that the building was valued at $115,000.00 and that the parties purchased it in
November 2013, so the reasonable inference is that the Business used the building for at least five
years. In addition, Husband testified that he had “always” withdrawn money from the parties’
savings account at his sole discretion to pay the Business’s bills when necessary to keep the
11
Business afloat. Husband argued that neither party offered evidence regarding the specific amount
of money Husband withdrew from the marital account to run the Business.13 But, based on
Husband’s testimony regarding his long-standing practice of using marital funds in that manner
without Wife’s approval or knowledge and his testimony about the amount he transferred from the
marital account to the Business’s account from May through July 2018 (approximately
$100,000.00), the reasonable inference is that Husband withdrew significant amounts of money
from the marital savings account to support the Business and that access to such funds was
instrumental to the success of the Business. Thus, the evidence supports a finding that, during the
marriage, Husband also withdrew significant amounts from the marital account to run the
Business.
Because neither Husband nor Wife asked the trial court to make specific findings of fact,
we presume the trial court correctly applied § 452.330.2(5) (the source-of-funds rule) in entering
its judgment. Krepps, 234 S.W.3d at 615-16. The trial court accepted McLain’s testimony that
Husband’s ownership interest in the Business had increased by $348,965.00 during the marriage,
and Husband does not challenge this on appeal. And, based on the evidence, the court classified
the entire increase as marital property. Under Krepps, we presume the court did so because it
found that the increase was due to marital effort and other marital contributions.
Based on the evidence of Wife’s work for the Business, the Business’s rent-free use of
marital property, and Husband’s indiscriminate use of marital funds to pay the Business’s bills, we
find there was substantial evidence to support the court’s classification of the entire $348,965.00
increase in Husband’s ownership interest in the Business as marital property. And, as the
appellant, Husband has the burden on appeal to show that the evidence and reasonable inferences
13
There was testimony that Husband did not maintain detailed financial records for the Business.
12
drawn therefrom are insufficient to support the trial court’s finding—a burden that Husband did
not meet.
Having found that there was substantial evidence to support the trial court’s conclusion
under § 452.330.2(5) that the Business had a marital value of $348,965.00, we also find that the
court did not misinterpret or misapply that statute.
Points I and II are denied.14
For his third point (identified in Husband’s opening brief as Point IV), Husband argues that
the court erred by failing to subtract the $234,554.00 mortgage on the marital home, which the
court awarded to Wife, from the calculation of the net marital estate, resulting in an excessive
equalization payment from Husband to Wife in the amount of $302,300.50. Husband’s argument
is based on language in the judgment that references the “net marital estate” valued at
$1,067,555.00 and the court’s intention that “[e]ach party . . . receive 50%: $533,777.50.”
Husband argues that use of the term “net marital estate” reflects the court’s intention to divide the
marital assets minus the marital debt equally between the parties. But, instead of subtracting the
marital debt (the mortgage) from the sum of the marital assets to calculate the net estate, the court
split the assets equally and then subtracted the entire mortgage from Wife’s half before calculating
Husband’s equalization payment. Had the amount of the marital debt ($234,554.00) been
subtracted from the gross marital estate to determine the value of the net marital estate
($832,996.00) and had the court still given each spouse 50% of the net marital estate, Husband’s
equalization payment to Wife would have been reduced by $117,277.00 (one half of the amount
of the mortgage) and each spouse would have received $416,498.00.15
14
In view of our disposition of Points I and II, we need not address Wife’s argument, raised for the first time
on appeal, that the Business is Husband’s alter ego.
15
Although the judgment states that each party is to receive $533,777.50, with the equalization payment,
Wife receives that amount but Husband receives only $299,224.50.
13
“The division of marital property need not be equal, but must only be fair and equitable
given the circumstances of the case.” Nelson v. Nelson, 25 S.W.3d 511, 517 (Mo. App. W.D.
2000). And the trial court has substantial discretion in dividing marital property and marital debt.
Russum, 214 S.W.3d at 384.
The problem this court faces on appeal is that, while the trial court had the discretion to
divide the marital estate unequally, that is not what the trial court said that it was doing. The court
stated that each party was to receive fifty percent of the net marital estate, meaning each spouse
would receive half of the marital assets and half of the marital debt. But, after assigning each
spouse an equal share of the marital assets, the court assigned the entire amount of the mortgage
(the only marital debt) to Wife, thereby reducing the value of the assets distributed to her and
increasing the amount of the equalization payment due from Husband.
On appeal, Wife argues that the trial court is not required to divide the net marital estate
equally, that the court elected to give Wife the greater share of the net assets, and that, in choosing
such a distribution, the court did not abuse its discretion. While we agree that the trial court has
the discretion to divide the marital estate unequally, it is not clear that is what the court intended
to do. In support of her argument that the trial court intended to make an unequal distribution,
Wife notes that the amended judgment “specifically laid out, paragraph-by-paragraph . . . [what]
each piece of property was worth and to whom it was being given, and then ordered Husband to
make an equalization payment of $302,300.50.” While that is true, the amount of the equalization
payment and the resulting unequal distribution of marital assets is solely the product of the trial
court’s calculation of the “net marital estate.”
In paragraph 56 of the amended judgment, the trial court includes two charts: the first sets
out the value of marital assets ($1,067,555.00), and the second that sets out a marital liability of
14
$234,554.00. Immediately below the charts, the judgment states that the “net marital estate” is
$1,067,555.00, and that it is the intent of the court to divide the estate equally with each party
receiving $533,777.50. The “net” assets of an entity is the excess of its assets over its liabilities.
Net Assets, Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/net assets (last visited March 9, 2020). But the $1,067,555.00 amount
identified by the trial court as the net marital estate does not take into consideration the marital
liability. Rather $1,067,555.00 is the number in the first chart that represents the total value of the
marital assets ($601,524.00 awarded to Husband and $466,031.00 awarded to Wife).
After concluding that half of the net marital estate is valued at $533,777.50, the court
reduced the value of the assets awarded to Wife by the total amount of marital liability
($466,031.00 - $234,554.00 = $231,477.00) and ordered Husband to pay $302,300.50 to equalize
the distribution of assets ($533,777.50 - $231,477.00 = $302,300.50). This would have resulted
in an equal distribution of marital assets if the mortgage was not a marital liability. But, in the
judgment, the court concluded that the mortgage is a marital liability even though the note was in
Husband’s name only. Failing to factor the mortgage into the net marital estate and instead
reducing the amount of the assets awarded Wife by the full amount of the mortgage, resulted in an
unequal division of marital assets by increasing the amount of the equalization payment by
$117,277.00 (one half of the amount of the mortgage). While the trial court certainly had the
discretion to divide the property unequally and could have done so without abusing its discretion,
the fact that the unequal distribution is one half of the amount of the marital liability and is a result
of the net marital assets being calculated without taking the marital liability into consideration,
leaves us unable to determine whether the trial court actually intended this unequal distribution.16
16
Wife argues that, although the amended judgment does not expressly state the intent to divide the net
marital estate unequally, the trial court’s intent to do so is evidenced by its denial of Husband’s post-trial Motion to
15
Because it is unclear which approach the court intended—an equal distribution of the net
marital estate or an unequal distribution favoring Wife—we remand this case for further
clarification on this issue from the trial court. Finest Place, Inc., 477 S.W.3d at 749.
Point IV is granted.
Conclusion
In light of the foregoing, we affirm the trial court’s holding that the increase in the value
of Husband’s non-marital company during the marriage is marital property, but we reverse the trial
court’s judgment and remand the cause for the trial court to clarify its treatment of the marital
liability in calculating the net marital estate and the amount of the equalization payment owed by
Husband.
Karen King Mitchell, Chief Judge
Cynthia L. Martin and Edward R. Ardini, Jr., Judges, concur.
Vacate, Amend, or Set Aside the Amended Judgment. Although Husband raised the issue in his motion, in denying
the motion, the trial court simply stated that, “[a]fter careful consideration and for good cause shown, said Motion is
DENIED.” In denying the motion, the trial court did not state that its intent was to divide the assets unequally or
otherwise explain the inconsistencies in the amended judgment.
16