                                                                  Corrected July 30, 2015




               In the Missouri Court of Appeals
                                  Western District

DANIEL NAVARRO,                           )
                             Respondent, )
v.                                        )          WD77820
                                          )
MARISA NAVARRO,                           )          FILED: July 28, 2015
                               Appellant. )

       APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY
            THE HONORABLE WANDA A. HANSBROUGH, JUDGE

       BEFORE DIVISION THREE: KAREN KING MITCHELL, PRESIDING JUDGE,
         LISA WHITE HARDWICK AND ANTHONY REX GABBERT, JUDGES

      Marisa Navarro ("Wife") appeals from the judgment dissolving her marriage

to Daniel Navarro ("Husband") and finding her to be in contempt of certain

provisions in the judgment. Because the circuit court failed to address and

distribute one of the parties' assets, its judgment was neither final nor appealable.

Therefore, we dismiss this appeal for lack of jurisdiction and remand the case to

the circuit court for further proceedings.

                          FACTUAL AND PROCEDURAL HISTORY

      Husband and Wife were married in July 1991 and had two children. They

separated in 2012, after Husband filed a petition for dissolution of marriage. In
response, Wife filed an answer and counter-petition. Both Husband and Wife

requested an equitable division of the marital property.

      Trial was held on the dissolution petition and counter-petition on May 1,

2013, and May 23, 2013. At the conclusion of the trial, the court announced its

rulings concerning child custody, support, attorney's fees, and the division of

property. Specifically, with regard to the marital property, the court stated that it

wanted "the property divided between the parties at a 50/50 split." The court

directed Husband to prepare a written judgment. The court entered the written

judgment on June 24, 2013.

      After the court entered the dissolution judgment, Husband filed a motion for

contempt in which he asked the court to find Wife in contempt of a portion of the

judgment concerning the disposition of the marital residence. Wife filed a response

to the contempt motion and also filed a motion for new trial. One of Wife's

allegations in her new trial motion was that the written judgment failed to distribute

all of the marital assets, namely, Husband's retirement plan. During the trial,

Husband testified on cross-examination that he "just found out" that his company

had contributed to a 401(k) plan on his behalf and that it was worth $5673.68.

He admitted that he failed to list this retirement plan on his statement of marital

and non-marital assets and debts. On redirect examination, Husband said that he

was unaware of the plan because he did not make any contributions to it; however,

he confirmed that the plan existed and that his employer had been contributing to




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it. The court's dissolution judgment did not address or divide Husband's 401(k)

plan.

        During arguments on Wife's motion for new trial, Husband's counsel

represented to the court that Husband had no retirement plan to be divided. He

also stated that he did not "recall any evidence ever being presented as far as

retirement" because the 401(k) plan was not listed on Husband's statement of

marital assets and debts. In response, Wife's counsel asserted that there was

testimony "about a $5600 retirement plan that was not included" in the property

division. The court entered an amended dissolution judgment on September 3,

2013, but the only change made to the property division concerned the disposition

of the marital residence.

        Wife filed a notice of appeal of the amended dissolution judgment and a

second motion for new trial. In her second motion for new trial she alleged, among

other things, that the amended dissolution judgment omitted Husband's 401(k)

plan. After hearing arguments from counsel for both parties, the circuit court

denied Wife's second motion for new trial. This court subsequently dismissed

Wife's appeal of the amended dissolution judgment after finding that the judgment

was not final and appealable because several issues in the case remained pending.

These issues included Husband's contempt motion, his request for leave to file an

amended contempt motion, and his request for attorney's fees on appeal.

        After we dismissed Wife's appeal of the amended dissolution judgment, the

circuit court allowed Husband to file an amended motion for contempt. In his

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amended motion, Husband asked the court to hold Wife in contempt of the

amended dissolution judgment for refusing to refinance or to vacate the marital

residence, refusing to relinquish the personal property awarded to him, and refusing

to pay his attorney's fees. Following a hearing, the court granted Husband's

amended motion and found Wife to be in contempt of the amended dissolution

judgment. Wife appeals the amended dissolution judgment and the contempt

judgment.

                                        ANALYSIS

      Although Wife raises five points on appeal, we dismiss her appeal without

addressing the merits of her claims. In Points I, II, and V, Wife challenges the

amended dissolution judgment's failure to divide the marital property equally

between the parties. Wife specifically argues in Points I and V that the amended

dissolution judgment failed to divide Husband's 401(k) plan, and she asks that the

judgment be reversed and remanded so that the circuit court can divide all of the

marital property.

      Wife is correct that the circuit court must divide all marital property in a

dissolution judgment. Section 452.330.1, RSMo 2000, requires the court in a

dissolution proceeding to determine whether property is marital or non-marital and,

if marital, divide it in a just manner. The circuit court's failure to classify and divide

the parties' property deprives this court of jurisdiction over the appeal:

      "If [ ] undistributed property is discovered before the time for appeal
      has run, the appellate court, when presented with an appeal raising
      the issue of undistributed property, must dismiss the appeal because

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      the trial court has not exhausted its jurisdiction and has not rendered a
      final judgment from which an appeal can be taken."

Pollard v. Pollard, 363 S.W.3d 386, 387 (Mo. App. 2012) (quoting Meltzer v.

Meltzer, 775 S.W.2d 120, 120-21 (Mo. banc 1989)).

      In this case, Husband testified that he had a 401(k) plan worth $5673.68.

The original dissolution judgment did not classify and divide the plan or find that

the plan did not exist. Although Wife brought the omission of the plan to the

court's attention in her new trial motion, the court did not include the plan in its

amended dissolution judgment. Wife raised the plan's omission from the amended

dissolution judgment in her second new trial motion, which the court denied.

Because the amended dissolution judgment did not classify and divide Husband's

401(k) plan or otherwise address the omission of the plan from the parties'

property division, the amended dissolution judgment was not final and appealable.

Id. at 387. Therefore, Wife's appeal of that judgment must be dismissed. Id.

      We decline to address Wife's two points on appeal concerning the contempt

judgment, as both challenges are premised on the entry of a contempt order to

remedy Wife’s failure to abide by a final amended dissolution judgment. It is thus

unnecessary to determine whether the contempt judgment had become “final and

appealable” by way of enforcement. See In re Marriage of Crow and Gilmore, 103

S.W.3d 778, 780-81 (Mo. banc 2003). Because the amended dissolution

judgment is not final, it is subject to revision or modification on all issues. As we

explained in Pollard:



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      The effect of this dismissal is to recognize the jurisdiction of the trial
      court to enter a new judgment covering the entire case. Because the
      trial court has not been divested of jurisdiction, that court retains
      control over every phase of the case so that it may correct errors, or,
      in its discretion, modify or set aside orders or judgments until its
      jurisdiction is extinguished by the judgment becoming final and
      appealable. Either or both parties will then have the right to appeal
      the circuit court's new decree of dissolution.

Id. at 387-88 (internal quotation marks and citations omitted).

                                      CONCLUSION

      The appeal is dismissed for lack of a final judgment on the marital

dissolution, and the cause is remanded to the circuit court, which retains

jurisdiction to enter a new judgment covering the entire case. Within the exercise

of that jurisdiction, the circuit court is hereby directed to classify and divide any

undivided property, as required by Section 452.330.1, or make a specific finding

that no such property exists.

      Wife's request for attorney's fees on appeal is denied.



                                                ____________________________________
                                                LISA WHITE HARDWICK, JUDGE

ALL CONCUR.




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