                In the Missouri Court of Appeals
                        Eastern District
                                   DIVISION THREE

SANDRA M. SERAFIN,                           )       No. ED103696
                                             )
       Respondent,                           )       Appeal from the Circuit Court of
                                             )       the County of St. Louis, Missouri
vs.                                          )       13SL-DR04529
                                             )
JEFFREY B. SERAFIN,                          )       Honorable Kristine Kerr
                                             )
       Appellant.                            )       Filed: July 26, 2016

                                        OPINION

       This is an appeal from a pendente lite judgment awarding attorney’s fees in a

dissolution of marriage proceeding in St. Louis County. Jeffrey B. Serafin (“Husband”)

appeals the trial court’s award of $50,000 in attorney’s fees to his wife Sandra M. Serafin

(“Wife”). For the reasons that follow, we affirm.

                             Facts and Procedural History

       The parties were married in September 1993, and two children were born during

the marriage. In July 2013, Wife filed her petition for dissolution of marriage and a

motion for a pendente lite order of temporary maintenance, child support, child custody,

and attorney’s fees.

       In March 2014, the court awarded attorney’s fees to both parties to be paid from

the court-ordered liquidation of certain marital property. In April 2014, the court entered

a consent pendente lite order which governed the parties’ legal relationship regarding
certain expenses, child support, and property distribuition until further order of the court

or until the final disposition of the case.

        In January 2015, five days before the case was set for trial, Wife filed a motion to

delay the start of trial and a motion for sanctions against Husband in which Wife sought

orders striking Husband’s pleadings, excluding Husband from testifying at trial, and an

award of attorney’s fees as a result of newly-discovered assets that Husband had failed to

disclose. The trial court continued the trial and ordered further discovery.

        Over the next approximately six months, Wife filed numerous motions alleging

that Husband had failed to comply with the court’s discovery and pendente lite orders. In

June 2015, the court entered its order on Wife’s motion for sanctions in which it found

that Husband had failed to disclose:

        a. his interest in a trust worth more than $2 million;

        b. his interest in an IRA worth approximately $220,000;

        c. his interest in a company which was incorporated in November 2014; and

        d. his interest in a $1.3 million house purchased by the aforementioned company

where Husband was believed to be living.

        In July 2015, Wife filed a motion seeking an award of $100,000 for attorney’s

fees that she claimed she incurred as a result of the litigation generated by Husband’s

failure to disclose the aforementioned assets. Husband filed a motion to dismiss Wife’s

motion for attorney’s fees arguing that Wife’s request was barred by the doctrine of res

judicata because the prior April 2014 pendente lite order and the March 2014 attorney’s

fees award precluded any further attorney’s fees award in this case. On August 5, 2015,

the court granted Wife’s motion and entered its order and judgment awarding Wife




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$50,000 in attorney’s fees. Husband filed a motion for new trial or, in the alternative, to

amend the court’s order and judgment. The court denied that motion. This appeal

follows.

                                      Standard of Review

           A pendente lite judgment for attorney’s fees is authorized by § 452.355 1, Leahy v.

Leahy, 858 S.W.2d 221, 228 (Mo.banc 1993), and is appealable, Laubinger v. Laubinger,

5 S.W.3d 166, 171 (Mo.App.W.D. 1999); Zaegel v. Zaegel, 697 S.W.2d 223, 224

(Mo.App.E.D. 1985). Pendente lite judgments are reviewed under the same standard as a

court-tried case: we affirm the judgment of the trial court unless it is not supported by

substantial evidence, it is against the weight of the evidence, or it erroneously declares or

applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). The evidence,

and all reasonable inferences therefrom, is viewed in the light most favorable to the

judgment. Delsing v. Delsing, 409 S.W.3d 574, 577 (Mo.App.E.D. 2013). Furthermore,

in reviewing a court-tried case, our primary concern is the correctness of the trial court’s

result, not the route taken to reach it. Smith v. Estate of Harrison, 829 S.W.2d 70, 73

(Mo.App.E.D. 1992).

                                            Discussion

      I.      The trial court’s award of $50,000 in attorney’s fees to Wife is not barred

              by res judicata.

           In point I, Husband contends that the trial court erred as a matter of law in

awarding Wife attorney’s fees because the award was barred pursuant to the doctrine of

res judicata in that Wife’s right to attorney’s fees during the pendency of the litigation



1
    All references to statutes are to RSMo 2000 unless otherwise indicated.


                                                 3
had already been conclusively adjudicated by the trial court’s previous attorney’s fees

award in March 2014 and the pendente lite order in April 2014. We disagree because the

doctrine of res judicata does not apply here.

       Pendente lite orders and judgments are authorized and frequently employed in

dissolution cases for the purpose of maintaining the status quo during a dissolution

proceeding so that children have adequate support and the parties have sufficient funds to

allow meaningful participation in the proceeding. Laubinger, 5 S.W.3d at 176. Pendente

lite judgments are reviewed as independent proceedings standing upon their own merits

and are in no way dependent upon the merits of the issues in the underlying dissolution

suit. Nilges v. Nilges, 610 S.W.2d 58, 62 (Mo.App.E.D. 1980). A party may seek an

award of attorney’s fees incurred during the pendency of the litigation pursuant to §

452.355 and such attorney’s fees may be awarded independently of a pendente lite order

for temporary maintenance and support pursuant to § 452.315. Dyche v Dyche, 570

S.W.2d 293, 296 (Mo.banc 1978); Holder v. Holder, 826 S.W.2d 379, 381 (Mo.App.E.D.

1992). Section 452.355 provides that a court in a marriage dissolution proceeding may

award attorney’s fees “from time to time” after considering 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. A pendente lite award of attorney’s fees has the same

level of finality as a pendente lite award of maintenance or child support. State ex rel.

Carlson v. Aubuchon, 669 S.W.2d 294, 297 (Mo.App.E.D. 1984).

       The doctrine of res judicata precludes parties from contesting matters that the

parties have already had a full and fair opportunity to litigate. Lay v. Lay, 912 S.W.2d

466, 471 (Mo.banc 1995). A claim is barred by res judicata if in a prior adjudication the




                                                4
following elements are satisfied: (1) identity of the thing sued for; (2) identity of the

cause of action; (3) identity of the persons or parties to the action; and (4) identity of the

quality or status of the person for or against whom the claim is made. Missouri Real

Estate & Ins. Agency, Inc. v. St. Louis Cnty., 959 S.W.2d 847 (Mo.App.E.D. 1997). In

order to have identity of the cause of action, the actions do not have to be identical but

the claims must have arisen out of the same act, contract, or transaction. Id.

         Here, res judicata does not apply. The attorney’s fees award at issue here was

caused by Husband’s improper conduct in failing to disclose assets which conduct was

not contemplated when the court issued its first attorney’s fees award. Thus, with respect

to the two attorney’s fees awards here, the identity of the thing sued for and the identity

of the cause of action are different and the award at issue here was based on matters that

were not litigated in the prior award because Husband’s concealment of assets had not yet

been discovered.

         Moreover, the trial court’s March 2014 adjudication regarding attorney’s fees was

authorized by § 452.355.1 to allow the parties to pay their attorneys to litigate their

dissolution of marriage case. Section 452.355.1 specifically grants the trial court the

authority to award attorney’s fees “from time to time.” Therefore, the court has the

authority to make more than one pendente lite attorney’s fees award, and as we stated

above, res judicata does not apply to the court’s award here. Point denied.

   II.      The trial court did not violate Husband’s due process rights.

         In point II, Husband contends that the trial court violated his due process rights by

failing to have a hearing and allow evidence to be presented before awarding Wife

attorney’s fees. This point is denied because Husband waived this argument, and in any




                                               5
event, Husband received all the constitutionally required due process to which he was

entitled.

        To properly raise a constitutional claim, a party must: (1) raise it at the first

available opportunity; (2) designate specifically the constitutional provision claimed to

have been violated; (3) state the facts showing the violation; and (4) preserve the

constitutional question throughout for appellate review. Laubinger, 5 S.W.3d at 173.

Because Husband did not raise his constitutional claim with the trial court until after the

trial court awarded Wife attorney’s fees, Husband waived his claim. Id. at 174.

        Further, Husband was not denied due process. The fundamental requirement of

due process is to provide notice and an opportunity to be heard. Id. at 175. The

opportunity to be heard must come at a meaningful time and in a meaningful manner. Id.

The opportunity to present argument, either in person or in writing, is sufficient to satisfy

due process. Id. at 176.

        There is no dispute that Husband received notice that Wife was seeking an award

of the attorney’s fees incurred as a result of the litigation surrounding Husband’s

undisclosed assets. She sought her fees soon after she discovered that Husband had

failed to disclose certain assets to her and to the court. She requested attorney’s fees in

her motion for sanctions filed five days before the trial was scheduled to begin in January

2015, in several motions filed thereafter, and again on July 17, 2015, when Wife filed her

motion for attorney’s fees that is the subject of this appeal. The matter was set for

hearing and Husband appeared at that hearing. This was adequate notice.

        Likewise, Husband had an opportunity to be heard. In responding to Wife’s

motion for attorney’s fees, Husband filed a motion to dismiss and was given the




                                               6
opportunity to argue orally at the hearing on the motion. The trial court’s order and

judgment reflects that the court took judicial notice of its file and considered the oral and

written arguments of counsel before ruling. We find that Husband was not denied due

process because he received adequate notice and an opportunity to be heard on Wife’s

motion for attorney’s fees. See id. Point denied.

    III.      The trial court did not abuse its discretion in awarding Wife $50,000 in

              attorney’s fees.

           In point III, Husband contends that the trial court abused its discretion in

awarding Wife $50,000 in attorney’s fees and specifically complains that the court made

improper findings of fact on the issue of Wife’s financial resources. We find that the trial

court did not abuse its discretion in this case.

           Parties to domestic relations cases generally are responsible for paying their own

attorney’s fees. Goins v. Goins, 406 S.W.3d 886, 891 (Mo.banc 2013). Section

452.355.1, however, authorizes the circuit court to award attorney’s fees after considering

the financial resources of both parties, the merits of the case, and the actions of the parties

during the proceedings.

           While an award of attorney’s fees must be supported by competent and substantial

evidence, the trial court is considered an expert on the necessity, reasonableness, and

value of attorney’s fees. Alabach v. Alabach, 485 S.W.3d 386, 388 (Mo.App.E.D. 2016);

Tepper v. Tepper, 763 S.W.2d 726, 726 (Mo.App.E.D. 1989). As an expert on the

necessity, reasonableness, and value of attorney’s fees, the trial court may independently

determine and award the fees it deems appropriate. In re Marriage of Geske, 421 S.W.3d

490, 498 (Mo.App.S.D. 2013).




                                                 7
        The fact that one party’s income exceeds the other’s income does not compel an

award of attorney’s fees. Adams v. Adams, 51 S.W.3d 541, 549 (Mo.App.W.D. 2001).

But one party’s greater ability to pay can be a sufficient reason to support an award of

attorney’s fees. Graves v. Graves, 967 S.W.2d 632, 643 (Mo.App.W.D. 1998). Even if a

spouse can afford to pay his or her attorney’s fees, the trial court trial court may still

award attorney’s fees in favor of that party. Id.

        When a trial court has before it evidence that fees and expenses were the result of

a party’s misconduct during litigation, such evidence provides a sufficient basis for an

award of attorney’s fees. In re Marriage of Geske, 421 S.W.3d at 499; Bauer v. Bauer,

38 S.W.3d 449, 457 (Mo.App.W.D. 2001). In particular, the trial court may consider

what principal issues caused the attorney’s fees. Leone v. Leone, 917 S.W.2d 608, 616

(Mo.App.W.D. 1996). A finding by the trial court of a discrepancy in reported income or

assets may support an award of attorney’s fees, see Lokeman v. Flattery, 146 S.W.3d 422,

432 (Mo.App.W.D. 2004), and so may a party’s conduct in concealing assets, see Hubbs

v. Hubbs, 870 S.W.2d 901, 909 (Mo.App.S.D. 2004). The trial court has broad discretion

in awarding attorney’s fees and its ruling is presumptively correct. Adams, 51 S.W.3d at

549.

        An appellate court will reverse a trial court’s award of attorney’s fees pursuant to

§ 452.355.1 only if the trial court abuses its discretion. Aubuchon v. Hale, 453 S.W.3d

318, 325 (Mo.App.E.D. 2014). To demonstrate an abuse of discretion, the complaining

party must prove that the award is clearly against the logic of the circumstances and so

arbitrary and unreasonable as to shock one’s sense of justice. Id.




                                               8
       Here, the trial court did not abuse its discretion in awarding Wife $50,000 in

attorney’s fees. First, Husband’s argument that no hearing and no evidence was

presented is belied by the record. As we previously noted, the trial court’s judgment

indicates that the court in fact held a hearing and heard argument from the parties. The

court took judicial notice of its file, which contained information relevant to the court’s

decision including the extensive litigation that arose from Husband’s failure to disclose

substantial assets to Wife and to the court. The court received Wife’s attorney’s fees bill,

considered the financial resources of both parties and, importantly, considered the

conduct of the parties during the litigation. Husband’s failure to disclose assets and the

resulting litigation justified the trial court awarding Wife attorney’s fees. See Long v.

Long, 135 S.W.3d 538, 545 (Mo.App.S.D. 2004) (finding no abuse of discretion in

awarding attorney’s fees where it could be inferred from the record that the trial court

believed that actions attributable to husband caused wife’s fees and expenses to be higher

than would normally be the case).

       Moreover, the court noted that while Wife was awarded assets in the consent

pendente lite order, she did not work outside the home and had no income to fund her

attorney’s fees beyond borrowing or liquidating assets. This, combined with the fact that

the trial court found that Husband had failed to disclose millions of dollars in assets,

further supports the trial court’s award.

       As to any alleged omitted findings of fact, Rule 73.01(c) 2 provides that all fact

issues upon which no specific findings are made shall be considered as having been




2
  All references to rules are to the Missouri Supreme Court Rules (2016) unless otherwise
indicated.


                                              9
found in accordance with the result reached. While a party may request that the trial

court include specific findings in its judgment pursuant to Rule 73.01(c), any request

shall be made on the record before the introduction of evidence and there is nothing in the

record to support that Husband made such a request. Thus, the trial court was not

required to make any findings of fact, In re Marriage of Geske, 421 S.W.3d at 497, and

as we noted above, the trial court made all necessary findings of fact in any event. Thus,

the trial court did not abuse its discretion in awarding Wife $50,000 in attorney’s fees.

       Further, we are also obliged to affirm if we determine that the trial court reached

the correct result. Smith, 829 S.W.2d at 73. While the trial court correctly relied on §

452.355 in its judgment, it could also have awarded attorney’s fees as a sanction based on

Husband’s conduct. See Mitalovich v. Toomey, 217 S.W.3d 338, 340 (Mo.App.E.D. 2007)

(concluding that wife’s award of attorney’s fees was made as a sanction and not pursuant

to § 452.355). We affirm on this basis as well.

                                        Conclusion

       For the reasons stated above, the trial court’s judgment is affirmed.




                                                                                            _
                                                             James M. Dowd, Judge

Robert M. Clayton III, P.J., and
Lawrence E. Mooney, J., concur.




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