Lisa M. Rallo v. Pete S. Rallo

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
LISA M. RALLO, ) No. ED101746
)
Respondent, ) Appeal from the Circuit Court
) of St. Charles County
vs. )
) Hon. John P. Banas
PETE S. RALLO, )
) Filed:
Appellant. ) June 2, 2015
This appeal arises from the judgment dissolving the marriage of Lisa Rallo (“Wife”) and
Pete Rallo (“Husband”). Husband challenges venue, the custody determination, the division of
property and attorney fees. We affirm.
Husband and Wife were married in 2006. Wife was pregnant with a son at the time, and
Husband was not the natural father. The son was born during the marriage and adopted by
Husband. Husband and Wife also had a daughter together a year later. Husband, Wife and the
children lived in the City of St. Louis. In December of 2011, Wife and the children moved to her
grandparents’ home in St. Charles County. A month later, she filed a petition for dissolution in
St. Charles County. Husband filed a motion to dismiss or to transfer based on improper venue.
That motion was denied, and after failed attempts at mediation the case eventually proceeded to
trial in 2014. At that point, the son was eight and the daughter was seven.
The parties were awarded joint legal custody of the children, and Wife was given final
decision-making authority and sole physical custody. The trial court found both parties were
unemployed, but imputed a minimum wage income to Husband based on his lengthy history of
employment at Schnucks. The trial court divided the parties’ limited marital property, which
included Husband’s Schnucks pension and excluded a 2011 tax refund. The court granted
Wife’s request for attorney fees, but ordered Husband to pay only half of the amount requested.
Further facts and details will be developed in the discussion of each point.
In his first point, Husband claims that venue was not proper in St. Charles County and the
trial court should have dismissed the case or transferred it to the City of St. Louis where the
parties resided during the marriage. Where, as here, the venue ruling depended on factual
matters and the inferences to be drawn therefrom, we review for an abuse of discretion. See
McCoy v. The Hershewe Law Firm, P.C., 366 S.W.3d 586, 592 (Mo. App. W.D. 2012). We find
no abuse of discretion because venue was proper in St. Charles County.
Section 452.300.5 provides that dissolution proceedings “shall be commenced in the
county in which the petitioner resides.” Our courts have held that the term “resides” in this and
other provisions of the dissolution statute is equivalent to “domicile.” See Byars v. Byars, 593
S.W.2d 656, 658 (Mo. App. S.D. 1980); State ex rel. Henderson v. Blaeuer, 723 S.W.2d 589,
590 (Mo. App. W.D. 1987); see also Lindo-Higginbotham v. Higginbotham, 9 S.W.3d 620, 621-
23 (Mo. App. E.D. 1999) (“resident” in section 452.305 equivalent to “domiciled”). A domicile
is a person’s “true, fixed and permanent home and principal establishment to which, whenever he
is absent, he has the intention of returning.” Byars, 593 S.W.2d at 658. To establish residency,
it must be shown that Wife was actually present in St. Charles County and intended to remain
there, either permanently or for an indefinite time, without any fixed or certain purpose to return
to her former abode in the City of St. Louis. See Higginbotham, 9 S.W.3d at 621. In
determining a person’s intent regarding her residence, we consider “the acts and utterances of the
person . . . before, at, and after the time the domicile is in dispute.” Wambugu v. Wambugu, 896
S.W.2d 756, 757 (Mo. App. E.D. 1995). If intent is established by other evidence, then the
duration of the person’s bodily presence in the place is of little importance. Goeman v. Goeman,
833 S.W.2d 476, 478 (Mo. App. W.D. 1992).
2
Here, there is no dispute that Wife lived in St. Charles County at the time she filed the
petition for dissolution. There was also substantial evidence in the record—including Wife’s
own statements—that she intended to live in St. Charles County indefinitely. At the time of trial,
Wife still lived at the grandparents’ residence and had lived there continuously, except for a few
months when she moved to another location in St. Charles County with her boyfriend.
Husband’s argument focuses on this brief absence from the grandparents’ home and on Wife’s
testimony that she did not intend to remain at her grandparents’ home “at first” and, at some
point, had hoped to move to St. Louis County with her boyfriend. But those facts do not support
Husband’s contention that St. Charles County was not her residence at the time of filing; they
merely demonstrate Wife’s desire to, at some point, live independently from her grandparents,
which she first attempted to do within St. Charles County. Although she may have hoped to
move to another county someday, her testimony at trial indicated her intention—despite her
earlier hopes—to remain at her grandparents’ home in St. Charles County indefinitely to care for
them. There was no evidence that Wife ever intended to return to the City of St. Louis. These
utterances and actions—before, during and after the move to her grandparents’ home—support
the conclusion that Wife was a resident of St. Charles County for purposes of venue in this
dissolution action.
Husband’s motion to dismiss for lack of proper venue included an alternative request to
transfer the case to the City of St. Louis, where he resided, under section 452.300.5. Husband
has wholly failed to develop any argument to support this issue in his brief on appeal. He points
to no evidence in the record to establish—and makes no argument regarding—either of the
grounds on which the trial court would have had discretion to transfer this case to Husband’s
county of residence. See section 452.300.5(1) and (2) (children resided there for ninety days
prior to petition or transfer serves best interest of children).
Point I is denied.
3
In his second point, Husband challenges the trial court’s custody decision. This judgment
must be affirmed unless it is unsupported by substantial evidence, is against the weight of the
evidence, misstates or misapplies the law. Thorp v. Thorp, 390 S.W.3d 871, 877 (Mo. App. E.D.
2013). A trial court’s custody determination is afforded greater deference than other decisions.
Id. In fact, we presume that the trial court reviewed all of the evidence and based its decision on
the child’s best interests. Id. We view the evidence and any reasonable inferences therefrom in
the light most favorable to the judgment—disregarding contradictory evidence—but we will not
reweigh the evidence. Id. We defer to the trial court’s credibility determinations on appeal
because of its superior position to observe the sincerity and character of witnesses, as well as
other intangibles not evident from the record. Mehler v. Martin, 440 S.W.3d 529, 534 (Mo. App.
E.D. 2014). The trial court’s decision is afforded great deference, even if the evidence may have
supported another conclusion. Thorp, 390 S.W.3d at 877. In sum, we must affirm a custody
determination unless we are firmly convinced that the welfare of the child requires an alternative
arrangement. Id.
In its judgment, the trial court expressly stated that it had considered the public policy
stated in Section 452.375.4: that both parents have “frequent, continuing and meaningful
contact” with the children as long as it is in the children’s best interest. The court also listed each
of the specific factors set forth in section 452.375.2(1)-(8) and stated its findings thereon
underneath. Section 452.375.2 provides, in relevant part:
The court shall determine custody in accordance with the best interests of the
child. The court shall consider all relevant factors including:
(1) The wishes of the child’s parents as to custody and the proposed parenting
plan submitted by both parties;
(2) The needs of the child for a frequent, continuing and meaningful relationship
with both parents and the ability and willingness of parents to actively
perform their functions as mother and father for the needs of the child;
(3) The interaction and interrelationship of the child with parents, siblings, and
any other person who may significantly affect the child’s best interests;
4
(4) Which parent is more likely to allow the child frequent, continuing and
meaningful contact with the other parent;
(5) The child’s adjustment to the child’s home, school, and community;
(6) The mental and physical health of all individuals involved, including any
history of abuse of any individuals involved. . . .
(7) The intention of either parent to relocate the principal residence of the child;
and
(8) The wishes of a child as to the child’s custodian.
Having considered these factors, the trial court concluded that joint legal custody was in
the best interest of the children and ordered Husband and Wife to confer with one another
regarding decisions about the children. The court noted that the parties had difficulty
communicating and reaching consensus in the past; therefore, it ordered that if Husband and
Wife cannot agree after good faith efforts to communicate, then Wife will make the final
decision.
The trial court awarded sole physical custody of both children to Wife, noting that she
had been the primary caretaker from birth—both during the marriage and since the separation—
up to the time of trial. The court listed Wife’s extensive involvement in all of the children’s
educational and medical needs. It granted Husband three hours of visitation on a weekday
evening with advance notice to Wife, but eliminated the weekday overnight visits from the
parenting plan at Husband’s request. Husband continued to have alternating weekend visitation,
as he did during the separation.
Husband argues that there was evidence that Wife had made unilateral decisions about
the children’s education and health care during the separation without consulting him. He claims
this demonstrates that giving Wife ultimate decision-making power in the event of irreconcilable
differences was against the weight of the evidence and that giving Wife sole custody was not in
the children’s best interests. Wife testified, however, that communication with Husband about
these decisions was “pretty bad.” Husband was hard to get a hold of because he claimed not to
have a phone. Instead, Husband told Wife to communicate with him by calling his parents’
5
home, where she would leave a message with his mother and then it sometimes would take him
days to return the call. Husband hardly ever initiated contact with Wife. Wife testified she was
willing to continue communicating and trying to reach agreement about those decisions. She
also said, however, that mediation had failed in the past and was not something they could
afford. Therefore, she asked to be made the final decision-maker in the event she and Husband
faced irreconcilable conflict. She did not ask for sole legal custody. Husband admitted that Wife
had been communicating with him via his parents. At the time of trial, he said he had a cell
phone and would prefer her to call or text him. Yet, he had not given her the number at that
point and claimed he could not give it to her in the courtroom because he did not have it on him.
Husband also contests the court’s reliance on Wife’s role as primary caretaker as a factor
in awarding her sole physical custody. He claims that the court misapplied the law because
section 452.310.4 forbids giving preference to the parent in “actual possession of the child at the
time of filing.” But the court did not cite Wife’s possession of the children as a factor in
awarding her sole custody. Instead, it relied on the required statutory factors and her role as the
children’s primary caretaker from their birth through the time of trial. Husband also claims that
whether a parent is the “primary caretaker’ is not a factor set forth in 452.375.4. But the parent’s
“interaction and interrelationship” with the child is a factor, and a parent’s role as primary
caretaker is relevant thereunder. See section 452.375.4(3). Finally, Husband contends that there
was insufficient evidence to support the conclusion that Wife was the primary caretaker, citing
only to the fact that Husband took care of the kids—sometimes alone and sometimes with help
from his parents—during the times that Wife worked during the marriage. That evidence alone
does not refute or outweigh the other substantial evidence demonstrating Wife’s extensive
involvement with and primary responsibility for the children their entire lives. Wife testified that
she took care of all the children’s doctors’ appointments, including the many tests their son
needed for his autism and ADHD; she was the primary communicator with the children’s school
6
and was present at all school meetings, while Husband only came sometimes; she cooked for the
family and took care of bathing the children. The conclusion that Wife was the primary
caretaker is more than supported by the evidence.
Husband also contests the findings the court made under the factors set forth in Section
452.375.2.1 He first takes issue with the findings under subsections (1) and (2). Under
subsection (1), the trial court found that Husband had acknowledged he consistently chose not to
exercise weekday overnight visits with the children, which the court said “calls into question his
sincerity” as to his request to be sole custodian. Similarly, under subsection (2)—regarding his
willingness to carry out the proposed parenting plan and actively perform his duties—the court
noted again that Husband frequently missed his visitations. Husband claims the court
erroneously found him insincere based on settlement discussions in which Husband may have
indicated a desire for split custody of the children. But Husband points to nothing in the record
to support this contention.
Moreover, the court’s determination that Husband’s desire for sole custody and
willingness to take on that responsibility were of questionable sincerity was based on Husband’s
own testimony that he repeatedly and consistently did not exercise his right to weekday visits
during the separation because of the traffic between St. Louis and St. Charles. Contrary to
Husband’s claim in this brief, he was not unable to carry out these visits. Rather, he simply
chose not to visit because it was too hard. He also testified that he wanted a few hours of
weekday visits in the future if Wife was awarded custody, but not overnight, and he did not
intend to actually engage in those visits in the near future because of the travel issues; he just
wanted that visitation in place in case he changed his mind. The trial court was free to make
inferences from all of this testimony about Husband’s willingness to actively perform his
1
Husband claims the court’s findings on these factors were not detailed or specific enough. We disagree. The court
set forth each factor and then made findings on—or indicated there was no relevant evidence relating to—each
factor. This is all that is required. See Keel v. Keel, 439 S.W.3d 866, 878 (Mo. App. E.D. 2014) (sufficient findings
on relevant factors enough, no need for detailed findings on every factor).
7
functions as the sole custodian of the children as he requested. On this factor, Husband also
claims that there was substantial evidence that Wife alienated the children from him, but does not
cite to any specific place in the record where such evidence is contained, except to refer again to
how far away she moved from him and his alleged exclusion from school decisions. To the
extent any of that evidence contradicts the custody determination, we disregard it on appeal. The
findings on subsections (1) and (2) were supported by sufficient evidence.
As to subsection (3), the trial court found that Husband occasionally had difficulty
controlling his son and would contact Wife to help calm the son down. Husband claims there
was no evidence that he had trouble controlling his son, only that he sometimes had to ask Wife
about the son’s medication. This argument is belied by the record. Wife testified, in the context
of their history of poor communication, that Husband only called her if he had questions about
the son’s medicine. Later, however, she also testified that when Husband had the children on
weekends, Husband called her about the son’s behavior—that the son was yelling, screaming and
throwing a tantrum—and told Wife he thought the son needed to go to the hospital because
Husband could not control him. Wife had to drive to Husband’s house during a visit to get the
son calmed down on at least one occasion. This was sufficient to support the trial court’s finding
that “on occasions” Husband had trouble controlling the son.
Finally, Husband contests the findings under subsection (5), in which the court noted that
the uncontroverted evidence showed the children had adjusted to life in St. Charles County. He
claims that the trial court erroneously failed to consider Wife’s multiple relocations and
evictions, which he contends proves Wife is unable to provide a stable environment and
therefore giving her sole physical custody is not in the children’s best interest. But these
arguments contain no reference to a particular place in the record containing such evidence of
instability. Moreover, to the extent it is contradictory evidence, we disregard it on appeal.
8
Husband does not challenge any of the trial court’s other findings on the statutory factors:
namely that neither party intended to relocate under subsection (7); that there was no evidence of
parental interference with each other under subsection (4) or health issues under subsection (6);
and that it did not consider the wishes of the children under subsection (8) because they were too
young to be interviewed.
In sum, there was substantial evidence to support the trial court’s award of joint legal
custody, with ultimate decision-making in the event of irreconcilable differences to Wife, and the
award of sole physical custody to Wife. The trial court’s findings were not against the weight of
the evidence, and the court made no error of law. Husband has failed to firmly convince us that
the children’s welfare requires a different custody arrangement than what the trial court ordered.
Point II is denied.
In the next few points, Husband challenges different aspects of the trial court’s division
of marital property. The trial court has broad discretion in dividing marital property. Valentine
v. Valentine, 400 S.W.3d 14, 23 (Mo. App. E.D. 2013). We will not interfere with the trial
court’s distribution of marital property unless “the division is so heavily and unduly weighted in
favor of one party that it amounts to an abuse of discretion.” Id. at 23-24. We presume the trial
court’s division is correct and require the party challenging the division on appeal to overcome
that presumption. Id. at 24.
In the third point, Husband argues that the parties’ 2011 tax refund was presumed to be
marital property and should have been included in the trial court’s division thereof. Wife had
received that refund and states that it had been spent by the time of trial. Husband argues—for
the first time in his reply brief on appeal—that Wife squandered the money from the tax refund,
which should count against her in the division of property.
A court cannot include the value of a marital asset that no longer exists in its division of
marital property when one spouse has used that asset for her living expenses during the
9
separation. Loomis v. Loomis, 158 S.W.3d 787, 790-91 (Mo. App. E.D. 2005). But if that
spouse secretes or squanders the property in anticipation of divorce, the court may order
reimbursement. Id. at 791. As Husband’s own case citation reveals, it was his burden to
produce evidence demonstrating that this tax refund was secreted or squandered:
[A] spouse, claiming that a marital asset is being secreted or was squandered by
the other spouse in anticipation of a dissolution proceeding, must introduce
evidence demonstrating that there existed at some point a marital asset, which is
being secreted or was squandered. Once such evidence is introduced, while the
burden of proof remains with the spouse claiming that the other has secreted or
squandered the marital asset in question, the burden of going forward with the
evidence shifts to the other spouse to account for the claimed secreted or
squandered asset by presenting evidence as to its whereabouts or disposition.
Farnsworth v. Farnsworth, 108 S.W.3d 834, 841 (Mo. App. W.D. 2003) (emphasis added)
(internal quotation marks omitted) (citing Conrad v. Conrad, 76 S.W.3d 305, 316 (Mo. App.
W.D. 2002)).
There is no dispute that Wife received the tax refund in the amount of $6,285 and that it
was marital property. Although Husband requested during his testimony that the Court include
the tax refund in its division of marital property, he never claimed at trial that the funds remained
or that Wife had secreted or squandered those funds. Moreover, he presented no evidence to that
effect or any evidence to refute Wife’s testimony that she used part of the refund to pay
Husband’s personal property tax and offered him the remainder of his share of the refund, which
he refused. Wife was not asked what happened to the tax refund, but court documents indicated
her limited income and assets, from which the trial court could have inferred that she used the tax
refund for her daily living expenses. Under these circumstances, Husband has failed to
overcome the presumption that the trial court’s division of property correctly excluded the non-
existent remains of the 2011 tax refund. See Conrad, 76 S.W.3d at 316.2
2
Moreover, the trial court expressly took into account the fact that Husband had not received any of that refund
when it ordered him to pay only half of Wife’s requested attorney fees. This further exemplifies that the trial court
was not acting arbitrarily, but instead carefully crafted its judgment equitably.
10
Point III is denied.
In his fourth point, Husband contends that a portion of his Schnucks pension was non-
marital property because he had begun accumulating some of those benefits before the marriage.
Retirement benefits are considered marital property and are subject to division, unless they were
accumulated prior to the marriage. Valentine, 400 S.W.3d at 24. Husband had the burden at trial
to prove by clear and convincing evidence which portion of the pension was accumulated before
the marriage. See Kelly v. Kelly, 340 S.W.3d 673, 679 (Mo. App. W.D. 2011); see also
Valentine, 400 S.W.3d at 25.
Husband claims that the pension plan retirement summary he submitted to the trial court
shows that he “began accruing pension benefits in 2000,” six years before the marriage. That
document lists the total hours he worked each year and a variety of subcategories of hours with
abbreviated headings such as “std/pref hours” and “sup/def hours.” It also contains columns for
listing a variety of credits: “clerk credits,” “supp/spec credits,” “pension credits,” “vesting
service” and “eligibility credits.” Beginning in 2000, the document lists “0”, “.75” or “1” in
those credit columns for the remaining years of his employment. The document also shows the
total hours and credits for his nineteen years of employment and lists his total retirement at the
time of trial as $475. The only other evidence relating to his pension was Husband’s testimony.
He said that the retirement plan was not applicable when he first started at Schnucks because he
only worked part-time. He started working full-time about a year before he lost his job, which
was during the marriage. Husband testified that retirement benefits “started kicking in” when he
started working full-time, which occurred exclusively during the marriage and not before.
Husband provided the trial court with no information—much less clear and convincing
evidence—from which it could determine which portion of the pension had accrued before the
marriage. At best, the pension summary suggests that Husband had some “pension credit” prior
to the marriage, but neither the document on its face, nor any other evidence, revealed the
11
meaning of those credits or any other information in that document. Under these circumstances,
Husband failed to meet his burden of proof at trial and to overcome on appeal the presumption
that the trial court’s decision about the pension was correct. See Garrison v. Garrison, 255
S.W.3d 37, 43 (Mo. App. W.D. 2008).
Point IV is denied.
In his fifth point, Husband merely reiterates the arguments in the above points, claiming
that the division of marital property was not equitable because of the erroneous exclusion of the
2011 tax refund and inclusion of the entire pension. For the same reasons discussed above, we
disagree.
Point V is denied.
In his sixth point, Husband contests the fact and the amount of the trial court’s imputation
of income to him. “[T]he imputation of income is entirely discretionary, and what constitutes
appropriate circumstances to impute income will depend on the facts and must be determined on
a case-by-case basis.” Aubuchon v. Hale, 453 S.W.3d 318, 243 (Mo. App. E.D. 2014) (internal
quotation marks omitted). We will not reverse absent a manifest abuse of that discretion.
Hoffman v. Hoffman, 423 S.W.3d 869, 876 (Mo. App. E.D. 2014). Here, the trial court found as
follows with respect to Husband’s employment:
[Husband] has been unemployed since being released from his job at Schnucks.
Although [he] has testified that his ankle sometimes swells to a point where he
considers himself unemployable, he acknowledges that his application for Social
Security Disability has been rejected. [Husband] testified that he has had an
Appeal pending on his Social Security application but has not yet had any hearing
on that Appeal. In the meantime, [he] freely testified that he has not sought
employment nor is he currently seeking employment since it is his understanding
that in the event he accepts employment he would be disqualified from his Social
Security Disability application. The Court finds this testimony troubling.
Then, considering his long employment with Schnucks, both parties’ testimony and “the lack of
any medical evidence” about Husband’s inability to work, the court imputed to Husband an
income of $7.50 per hour, which is minimum wage, for forty hours a week.
12
“The purpose of imputing income is to prevent a parent from escaping responsibility to
his or her family by deliberately or voluntarily limiting his or her work to reduce income.”
Hoffman, 423 S.W.3d at 876-77. In proper circumstances, the court may impute income
according to what that person could earn using best efforts to gain employment suitable to his or
her capabilities. Id. at 877. “Proper circumstances” include situations where a parent has
voluntarily reduced income without justification or has lost a job involuntarily but has failed to
use best efforts to secure new employment, refused offers of employment or failed to
demonstrate that unemployment was temporary. Id.; see also Form 14, line 1, comment H.3
Husband contends that there was no evidence that he was intentionally avoiding work and,
therefore, the trial court’s findings are “completely against the uncontroverted facts.” We
disagree.
First, the only evidence regarding the conditions Husband claims prevent him from
working came from Husband’s own description thereof. The trial court was free to make its own
inferences regarding the extent to which that condition actually affected Husband’s ability to
work. Moreover, although he applied for a job at two other grocery stores a year before the trial,
he had not made any effort to secure employment since then; he testified that he was told that he
was not allowed to work while waiting on the appeal of the denial of his request for disability
benefits. It was within the trial court’s discretion to infer from this testimony that Husband was
3
That comment states:
When determining whether to include imputed income and, if so, the amount to include in a
parent’s “gross income,” a court or administrative agency shall consider all relevant factors,
including:
(1) The parent’s probable earnings based on the parent’s work history during the three
years, or such time period as may be appropriate, immediately before the beginning of the
proceeding and during any other relevant time periods;
(2) The parent’s occupational qualifications;
(3) The parent’s employment potential;
(4) The available job opportunities in the community; and
(5) Whether the parent is custodian of a child whose condition or circumstances make it
appropriate that the parent not be required to seek employment outside the home.
13
choosing not to work and was not completely incapable of working. In fact, Husband agreed that
there are certain types of jobs he could do with his alleged disability.
Wife’s testimony further supports the court’s conclusions. She acknowledged that
Husband had arthritis, which caused problems at work during the marriage “here and there, short
periods of time.” Wife said Husband’s ankle would swell up, but only a couple of times a year.
Wife said Husband never took a substantial medical leave from Schnucks because of his
condition, needing at most only a few days or a week off. She did not know whether his
condition had affected work since the separation, but had no reason to believe the condition had
worsened.
This evidence supports the conclusion that Husband had not used his best efforts to
secure new employment. Husband has failed to demonstrate a manifest abuse of the trial court’s
wide discretion to impute income under the circumstances of this case.
Husband also contests the amount of imputed income. Wife had asked that Husband be
imputed income of $12 per hour for forty hours a week—which is the hourly rate Husband was
earning at the end of his employment with Schnucks—but the court ordered only $7.50 per hour.
Husband contends the trial court failed to consider that Husband had not completed high school
or the available job opportunities in the community. But having determined that Husband was
actually capable of some full-time employment—and considering that Husband had been able to
maintain a job in some capacity for the entire marriage at as much as $14 per hour—there was
sufficient evidence to support imputing at least minimum wage. In fact, it may have been an
abuse of discretion not to have imputed at least minimum wage under these circumstances. See
Voinescu v. Kinkade, 270 S.W.3d 482, 489 (Mo. App. W.D. 2008).
Point VI is denied.
In his final point, Husband challenges the order to pay half of Wife’s attorney fees. The
trial court has broad discretion in awarding attorney fees, and we will not overturn an award
14
absent a showing that the trial court abused its broad discretion. Goins v. Goins, 406 S.W.3d
886, 891 (Mo. banc 2013). The trial court is considered an expert on attorney fees, and its
decision is presumptively correct. Id. “The party contesting the award of fees bears the burden
of showing that the trial court abused its discretion.” Id.
Wife requested attorney fees in the prayer for relief of her petition for dissolution, which
was filed in January of 2012. After his motion regarding venue was resolved—including writ
proceedings thereon—Husband filed an answer asking the court to deny all relief requested in
the petition. In the PDL judgment, entered in December of 2012, the trial court noted that the
parties consented to reserve any claim of attorney fees for the hearing on the merits set for
February 2013. After Husband’s first motion to continue was granted and the case reset to May
of 2013, Wife filed her answers to interrogatories indicating that she was not requesting attorney
fees. Thereafter, Husband sought a protective order, filed another motion to continue and
requested cancellation of the special master session that had been set. By the time mediation was
ordered instead, it was November of 2013. The trial was finally held in April 2014.
At trial, Wife testified that she was seeking attorney fees, as she had pled, in the amount
of $10,000. She had arranged to pay counsel a modified flat fee at different stages of the
proceedings. Wife explained that initially she paid counsel $5,000 and then, because the case
was extended, had to pay another $5,000. She got some of the money to pay this fee from her
grandparents. Wife testified that counsel’s fee was fair and reasonable considering the time
spent in court and depositions and the other work he did as reflected in the court’s docket sheets.
But she testified that she ended up incurring more fees than were necessary because of the length
of the case, which Wife testified was neither her nor her attorney’s fault. There was no itemized
statement of counsel’s work on this case. Instead, counsel asked the trial court to take judicial
notice of its file, which the court did without any objection from Husband.
15
The trial court stated in its judgment that it had considered all of the factors in section
452.355.1, which authorizes an award of reasonable attorney fees in dissolution cases after the
court considers “all relevant factors including the financial resources of both parties, the merits
of the case and the actions of the parties during the pendency of the action.” The court stated
that it had considered Wife’s testimony regarding her fee arrangement and the amount she paid
and found the $10,000 reasonable. The court expressly considered the following: the
“contentious and protracted” nature of the litigation, beginning immediately with the venue
issue; the repeated continuances at Husband’s request, which increased counsel’s trial
preparation time; the depositions, the cancellation of the special master session at Husband’s
request and the unsuccessful mediation; and the lack of any apparent disagreement at the time of
Husband’s deposition regarding child custody, visitation or division of property. Finally, taking
into account the division of property and the 2011 tax refund, the trial court concluded that
Husband should pay $5,000, which was half of the fees requested by Wife.
On appeal, Husband first contends that Wife should be estopped from seeking attorney
fees because she stated in her interrogatory that she was not requesting them. Husband provides
no legal authority for this contention. Moreover, he has demonstrated no equitable reason for
estopping Wife’s request under the circumstances of this case, particularly where it does not
appear that Husband relied in any way on her interrogatory answer. Rather, Husband was on
notice from Wife’s pleadings and testimony at trial that she was seeking attorney fees and he did
not object to litigating this issue—on the basis of an inconsistency between the petition and an
interrogatory answer or otherwise—at any point during the trial. In fact, it was not until a post-
trial memorandum of law that Husband challenged Wife’s request for attorney fees on the
ground that she had not answered her interrogatory “truthfully and honestly.”
Husband also argues that the award was erroneous because the court did not make a
finding that the case involved unusual circumstances before awarding attorney fees. The
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American rule requires each party to pay his or her own attorney fees unless there is a statute or
contract authorizing an award of fees or in the case of unusual circumstances. In dissolution
cases, section 452.355.1 provides the statutory authority and standard for awarding fees.
Therefore, it is unnecessary and inappropriate to address whether the case also involves unusual
circumstances. Despite the existence of this statute since 1974, the numerous cases properly
using the standards set forth therein without reference to unusual circumstances and the repeated
and explicit rejection of this argument by several courts over the years, there remain several
diverging strains of cases approving of the unusual circumstances standard in dissolution cases.
We take the opportunity here to examine briefly how this came to be and to take measures to
prevent it from continuing.
The first case after the enactment of section 452.355.1 in 19744 to use the unusual
circumstances standard despite the existence of the statute was In re Marriage of Hoglen, 682
S.W.2d 179, 182 (Mo. App. S.D. 1984). That case did not mention the statute and held that
attorney fees are only justified upon a showing of “very unusual circumstances.” Id. (citing non-
dissolution case in support). Hoglen was cited repeatedly over the next ten years for the
proposition that unusual circumstances are required to award attorney fees in a dissolution
case—sometimes in addition to the statutory factors and sometimes with no mention of the
statute. See, e.g., Amedei v. Amedei, 801 S.W.2d 491, 494 (Mo. App. W.D. 1990) and Echele v.
Echele, 782 S.W.2d 430, 441 (Mo. App. E.D. 1989).
In 1993, it was expressly stated for the first time that section 452.355.1 “contains no
requirement of unusual circumstances.” Dimmitt v. Dimmitt, 849 S.W.2d 218, 222 (Mo. App.
S.D. 1993). The next year, the court in Ansevics v. Cashaw expressly ordered that Hoglen and
other cases adopting the unusual circumstances standard “should not be followed.” 881 S.W.2d
4
When enacted, the statute provided only that the court consider “all relevant factors including the financial
resources of both parties” when ordering reasonable attorney fees. In 1998, the following factors were added: “the
merits of the case and the actions of the parties during the pendency of the action.”
17
247, 251 (Mo. App. W.D. 1994) (noting Hoglen’s reliance on declaratory judgment case using
unusual circumstances standard was misplaced). 5
But reliance on the unusual circumstances standard nevertheless persisted, and courts
continued to cite the cases that should not have been followed any longer under Ansevics.6 So
began a new line of opinions relying on these more recent cases, most of which were seemingly
unaware of the earlier cases denouncing this proposition.7 That said, many cases after Ansevics
heeded that court’s direction—or independently rejected arguments for the unusual
circumstances standard—and relied solely on the statutory authority and standards therein when
awarding attorney fees in dissolution cases.8 Very recently, the Southern District addressed the
issue, noting other courts’ express rejection of “the very unusual circumstances standard in
domestic relations cases brought under Chapter 452” and pointing out cases that held section
452.355.1 “contains no requirement of unusual circumstances.” Stroh v. Stroh, 454 S.W.3d 351,
364 (Mo. App. S.D. 2014). Although this and other clear pronouncements should be sufficient to
preclude further reliance on the unusual circumstances standard in the future, history had proven
otherwise.
The perpetuation of this incorrect standard of law stems in part from the different
lineages of case law on the topic. Therefore, in an effort to prevent future citation to cases
5
These are the cases that should not have been followed on this point after Ansevics: Campbell v. Campbell, 825
S.W.2d 319, 323 (Mo. App. W.D. 1992); Kovacs v. Kovacs, 869 S.W.2d 789, 794 (Mo. App. W.D. 1994);
Summerville v. Summerville, 869 S.W.2d 79, 84 (Mo. App. W.D. 1993); Hott v. Hott, 865 S.W.2d 449, 450 (Mo.
App. S.D.1993); Mudd v. Mudd, 859 S.W.2d 699, 703 (Mo. App. E.D. 1993); Pasley v. Patton, 855 S.W.2d 385,
389 (Mo. App. W.D. 1993); Gable v. Gable, 816 S.W.2d 287, 292 (Mo. App. W.D. 1991); Amedei, 801 S.W.2d at
494; Echele, 782 S.W.2d at 441; Lyles v. Lyles, 710 S.W.2d 440, 444 (Mo. App. E.D. 1986).
6
See In re Marriage of Glueck, 913 S.W.2d 951, 957 (Mo. App. E.D. 1996) (citing Campbell); see In re marriage of
Baker, 986 S.W.2d 950, 958 (Mo. App. S.D. 1999), In re Marriage of Thompson, 24 S.W.3d 751, 756 (Mo. App.
S.D. 2000) and Reiter v. Reiter, 372 S.W.3d 899, 906 (Mo. App. W.D. 2012) (all citing Echele).
7
See Schwartzkopf v. Schwartzkopf, 9 S.W.3d 17, 24 (Mo. App. E.D. 1999) (citing Baker); Myers v. Myers, 47
S.W.3d 403, 410 (Mo. App. S.D. 2001) and Pierce v. Pierce, 215 S.W.3d 263, 268 (Mo. App. S.D. 2007) (citing
Thompson); Deck v. Deck, 64 S.W.3d 870, 876 (Mo. App. E.D. 2002), Bonenberger v. Bonenberger, 108 S.W.3d
729, 735 (Mo. App. E.D. 2003) and Lagermann v. Lagermann, 109 S.W.3d 239, 244 (Mo. App. E.D. 2003) (all
citing Schwartzkopf); Pecher v. Pecher, 398 S.W.3d 580, 586 (Mo. App. W.D. 2013) (citing Reiter); Elnicki v.
Caracci, 445 S.W.3d 59, 74 (Mo. App. E.D. 2014) (citing Pecher).
8
See, e.g., Weston v. Weston, 882 S.W.2d 337, 342 (Mo. App. S.D. 1994); Halupa v. Halupa, 943 S.W.2d 272, 279
(Mo. App. E.D. 1997); Osborne v. Osborne, 978 S.W.2d 786, 789 (Mo. App. W.D. 1998).
18
already deemed bad law on this issue and further misstatement of the appropriate standards for
awarding attorney fees in dissolution cases, we expressly hold that the cases cited in footnotes 7
and 8 should no longer be followed for the incorrect proposition that unusual circumstances are
required to award attorney fees in dissolution cases. And, of course, Ansevic remains valid law
and precludes reliance on the cases cited in footnote 6 for that proposition as well.
Completely outside any of these lines of cases is the case cited by Husband in his brief,
which he admitted at oral argument may not be the most accurate statement of the law. In
Maurer v. Maurer, this Court affirmed the trial court’s denial of attorney fees because there were
no unusual circumstances. 383 S.W.3d 21, 32-33 (Mo. App. E.D. 2012). That opinion did not
refer to section 452.355.1 and instead cited Hihn v. Hihn, 237 S.W.3d 607 (Mo. App. E.D.2007).
Hihn held that the trial court had failed to properly consider the financial resources of both
parties under section 452.355.1 and then “additionally” noted that there was no evidence of
unusual circumstances. Id. at 609-11 (citing non-dissolution case in support). We find Hihn’s
use of the unusual circumstances standard unnecessary and Maurer’s reliance thereon misplaced.
Neither of those cases should be followed any longer either for the proposition that unusual
circumstances must be proven before awarding attorney fees in a dissolution case.
The majority of cases since the enactment of the statute have correctly—and without any
reference to unusual circumstances—stated that attorney fees in a dissolution case need only be
analyzed using the factors listed in section 452.355.1. This includes, most notably, all of the
Supreme Court cases on this issue. See e.g. Goins, 406 S.W.3d at 891; Russell v. Russell, 210
S.W.3d 191, 199 (Mo. banc 2007). Under section 452.355.1, the court may consider “all
relevant factors including the financial resources of both parties, the merits of the case and the
actions of the parties during the pendency of the action.” How the factors balance will vary from
cases to case. Kieffer v. Kieffer, 590 S.W.2d 915, 919 (Mo. banc 1979).
19
The trial court in this case expressly indicated that it considered all of the factors under
this statute. Husband claims there was no evidence of Husband’s ability to pay this award and
no indication as to what financial resources the trial court considered. Although the trial court
did not specifically cite the financial resources of the parties in the paragraph of the judgment
addressing attorney fees, that is not fatal to the award. We presume the trial court considered the
evidence it had set forth elsewhere in the judgment as to Wife’s income and Husband’s imputed
income. That evidence came from both the parties’ testimony and their statements of income
and expenses. This is sufficient evidence of the parties’ finances, and more detailed or extensive
information is not required. See Alberswerth v. Alberswerth, 184 S.W.3d 81, 94 (Mo. App.
W.D. 2006). That evidence shows that Husband has a greater ability to pay given his imputed
income of $1300 a month compared to Wife’s $360 monthly income. Wife was not required to
show a financial inability to pay attorney fees, and Husband’s greater ability to pay “is sufficient
to support an award of attorney fees.” Russell, 210 S.W.3d at 199.
Husband also takes issue with the notion that his requests for continuances or the filing of
the writ increased Wife’s litigation costs. But Husband’s conduct during the litigation is a
relevant factor, properly considered by the trial court in this case. Since the trial court is in a
better position to judge the credibility and sincerity of Husband’s actions during the litigation,
we defer to its conclusion that Husband’s conduct unnecessarily increased the length of this case.
See T.B.G. v. C.A.G., 772 S.W.2d 653, 655 (Mo. banc 1989).
Husband claims that the trial court’s statement regarding the parties’ agreements at the
time of his deposition is completely erroneous. His argument relies entirely on the notion that
Wife’s counsel asked him poor questions at the deposition and is otherwise unsupported.
Likewise he does not support his claim that the award was excessive, even though it was only
half of the attorney fees.
20
In sum, Husband has wholly failed to demonstrate an abuse of discretion or otherwise
overcome the presumption that the trial court’s decision on attorney fees was correct.
Point VII is denied.
The judgment is affirmed.
ROBERT G. DOWD, JR., Judge
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