               In the Missouri Court of Appeals
                                Western District

NICOLE LYNN MARTIN,              )
                    Respondent, )
v.                               )                 WD79044
                                 )
MATTHEW RAY MARTIN,              )
                      Appellant. )                 FILED: October 11, 2016

        APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY
               THE HONORABLE PATRICIA S. JOYCE, JUDGE

    BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE AND
            GARY D. WITT AND EDWARD R. ARDINI, JR., JUDGES

      Matthew Martin (“Father”) appeals from a judgment finding him in contempt

and another judgment dissolving his marriage to Nicole Lynn Martin (“Mother”).

Regarding the contempt judgment, Father contends that he was not in contempt,

the judgment did not set forth the facts and circumstances that constituted

contempt, and the court erred in ordering him to pay attorney’s fees as part of the

judgment. Concerning the dissolution judgment, Father argues that the court erred

in awarding Mother sole physical custody of their daughter and in valuing his

retirement plans. For reasons explained herein, we dismiss Father’s appeal of the

contempt judgment and affirm the dissolution judgment.
                               FACTUAL AND PROCEDURAL HISTORY1

       Father and Mother were married on April 10, 1998, and had one child

(“Daughter”). They separated in May 2014. Mother filed her petition for

dissolution of marriage in June 2014, and Father filed a counter-petition a month

later. Daughter was 16 years old when the parties filed the dissolution petitions.

       Shortly before Mother filed her dissolution petition, there was an incident in

which Mother alleged that Father cut Mother’s arm with a kitchen knife. Based

upon this incident, Mother filed a petition for an adult order of protection and a

child order of protection on behalf of Daughter. Ex parte orders of protection were

issued for Mother and Daughter.

       The court held a contested hearing on full orders of protection for both

Mother and Daughter on July 17, 2014. The court entered a full adult order of

protection for Mother. The court took the request for a full child order of

protection under advisement and ordered that the ex parte child order of protection

remain in effect pending the court’s ruling in the dissolution case.

       Mother then filed a motion for temporary custody and support. The court

held a hearing on the motion on October 9, 2014. Following the hearing, the court

entered a temporary child custody and support order in which it ordered Father to

continue to provide health insurance for Daughter and to pay Mother $523 per



1
 Mother has filed a motion to strike Father’s brief or dismiss his appeal based on his violations of
Rule 84.04. We exercise our discretion to review the merits of Father’s appeal despite the
numerous briefing deficiencies, because the violations do not impede our review. See Travelers
Commercial Cas. Co. v. Vac-It-All Servs., Inc., 451 S.W.3d 301, 304 n.1 (Mo. App. 2014).
Mother’s motion is denied.

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month in child support, retroactive from the date of service. The court further

ordered that the October 2014 payment be paid directly to Mother and that

subsequent payments be paid through the Family Support Payment Center by wage

withholding.

      On Mother’s motion, the court entered a judgment on January 27, 2015,

finding Father in contempt of the October 9, 2014 temporary child custody and

support order. The court found that Father’s employer had never received the

paperwork for the wage withholding and that Father had failed to provide child

support for November and December 2014. Additionally, the court found that

Father’s failure to provide the court-ordered child support resulted in additional

costs and attorney’s fees for Mother. The court concluded that Father had

completely disregarded the court’s orders and directives and was, therefore, in

contempt. The court ordered Father to pay $1046 in back child support and $500

in attorney’s fees to Mother.

      Trial on the dissolution petition and counter-petition was held in April 2015.

On April 23, 2015, the court entered its judgment dissolving the parties’ marriage.

In the judgment, the court awarded sole physical custody of Daughter to Mother

and joint legal custody of Daughter to Mother and Father; entered a parenting plan

providing for Father to have parenting time with Daughter as agreed upon by Father

and Daughter; ordered Father to continue to pay $523 per month in child support;

and valued and divided the parties’ marital assets. Father appeals from both the

contempt judgment and the dissolution judgment.

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                        APPEALABILITY OF CONTEMPT JUDGMENT

      Father’s first three points challenge the January 27, 2015 contempt

judgment entered against him. He contends that he was not in contempt, the

judgment did not set forth the facts and circumstances constituting contempt, and

the court erred in ordering him to pay attorney’s fees as part of the judgment.

      Before we can reach the merits of Father’s claims, we have a duty to

determine whether we have jurisdiction to do so. Long v. Long, 469 S.W.3d 10,

13 (Mo. App. 2015). We have jurisdiction to review a contempt order only if it is

final and appealable. Davis v. Davis, 475 S.W.3d 177, 181 (Mo. App. 2015). A

contempt order is not final and appealable until it is enforced.   Emmons v.

Emmons, 310 S.W.3d 718, 722 (Mo. App. 2010). A contempt order is enforced

through imprisonment or the imposition of a fine. Id. If the enforcement remedy is

imprisonment, the contempt order is not enforced until the issuance of a warrant of

commitment or actual incarceration. Id. at 722. If the enforcement remedy is a

fine, the contempt order is not enforced until the moving party executes on the

fine. Id. at 724 n.4.

      In this case, there is nothing in the record indicating that the contempt order

has ever been enforced. No warrant of commitment has been issued, no actual

incarceration has occurred, and no fine has been imposed. Although Father notes

that a garnishment order has been issued on behalf of Mother, “[c]ollection efforts

to enforce payment obligations set forth in a contempt order are not ‘enforcement’

mechanisms designed to coerce payment of the contempt order.” Id. Rather,

                                           4
“[t]he only monetary enforcement mechanism designed to coerce performance of a

contempt order is a fine.” Id. “Execution efforts to enforce a coercive fine are

distinguishable . . . from execution efforts to enforce the underlying payment

obligation giving rise to the contempt order.” Id. Mother’s garnishment was an

execution effort to enforce the underlying payment obligation giving rise to the

contempt order, not to enforce a coercive fine.2

       Father has failed to demonstrate that the contempt order has ever been

enforced. Therefore, the contempt order is not a final, appealable judgment.

Father’s appeal of the contempt judgment, as reflected in Points I, II, and III, is

dismissed.

                                      STANDARD OF REVIEW

       Father’s remaining two points challenge the dissolution judgment. Appellate

review of a dissolution judgment is under the standard of Murphy v. Carron, 536

S.W.2d 30, 32 (Mo. banc 1976). Jenkins v. Jenkins, 368 S.W.3d 363, 366 (Mo.

App. 2012). We will affirm the circuit court's judgment unless there is no

substantial evidence to support it, it is against the weight of the evidence, or it

erroneously declares or applies the law. Id. at 366-67. The party challenging the

dissolution judgment has the burden of demonstrating error. Shaw v. Shaw, 413

S.W.3d 332, 334 (Mo. App. 2013). We view the evidence and any reasonable



2
 Father also argues that the garnishment satisfied his underlying payment obligation. There is
nothing in the record before us to support his claim. Even if he did purge himself of the contempt
by paying the underlying obligation, however, his points challenging the contempt order would still
be unappealable, because they would be moot. Emmons, 310 S.W.3d at 723-24; Bruns v. Bruns,
186 S.W.3d 449, 452 (Mo. App. 2006).

                                                 5
inferences therefrom in the light most favorable to the court's decision and

disregard all contrary evidence and inferences. Id. We recognize that the circuit

court was "'free to believe or disbelieve all, part, or none of the testimony of any

witness.'" Id. (citation omitted).

                                      ANALYSIS

      In Point IV, Father contends the circuit court erred in awarding Mother “full

custody” of Daughter. He argues that the court may not “take custody of a child

away from a parent” unless the parent’s unfitness is shown, and he was never

proven to be an unfit parent.

      The court awarded Mother sole physical custody and Mother and Father joint

legal custody of Daughter. In its judgment, the court discussed each of the eight

factors in Section 452.375.2, RSMo Cum. Supp. 2013, that it considered in

determining that this custody arrangement was in Daughter’s best interests. The

court found that seven of the eight factors weighed in favor of Mother, while the

eighth factor was neutral.

      The only finding that Father challenges regarding any of these factors is the

court’s finding that the relationship between Daughter and Father was “strained.”

Father argues that the only reason why his relationship with Daughter was strained

was because of Mother’s false accusations against him. Daughter testified,

however, that she has never really had a good relationship with Father and that,

around the time of trial, he was pushing her too much and not “giving [her] time to

think about things and cope with things.” Additionally, Mother testified that Father

                                          6
has been emotionally absent and paid little attention to Daughter “pretty much”

throughout her life. We must defer to the court’s decision to accept this testimony

as credible. Shaw, 413 S.W.3d at 334.

          Contrary to Father’s assertion, the court did not take custody of Daughter

away from him. The court’s parenting plan granted Father parenting time with

Daughter; it simply provided that such parenting time be “at all times that Father

and the child agree.” Given that Daughter was 17 years old at the time of trial and

was preparing to graduate high school a year early and attend college full time,3

substantial evidence supported the court’s determination that this parenting plan

and custody arrangement were in Daughter’s best interests. Point IV is denied.

          In Point V, Father contends the circuit court erred in valuing his MetLife

retirement account and his MBS Textbook Exchange retirement account. He

argues that, before trial, he had to cash out his MetLife account to pay for legal

fees and expenses related to Mother’s “false claims of domestic violence.” He

further argues that the value of his MBS account at the time of trial was

approximately half of what the court found it to be.

          Generally, the appropriate date for valuing marital property is the date of

trial. Schubert v. Schubert, 366 S.W.3d 55, 72 (Mo. App. 2012). Therefore,

under this rule, if a marital asset does not exist at the time of trial, the court cannot

value and include it in the division of marital property. Id. “However, where a

party has intentionally secreted or squandered a marital asset in anticipation of the


3
    Mother’s brief indicates that Daughter is now 18 and is a full-time college student.

                                                    7
marriage being dissolved, the court may hold that party liable for the amount of the

asset by awarding it to him or her in its division of the marital property.” Id. The

circuit “court is free to disbelieve a witness' testimony or vague accounting that

[the witness] used expended money for living expenses.” Id.

      In its judgment, the court found that Father “cashed out large sums of

money, from retirement accounts acquired during the marriage, during the

pendency of this case” but that Father “testified he still has monies available.”

Consequently, the court accepted Mother’s values of these accounts, valuing

Father’s MetLife account at $27,639.74 and his MBS account at $11,165.98. The

court then awarded the accounts to Father.

      At trial, Mother testified that Father withdrew approximately $27,600 from

his MetLife account in 2014. Father admitted that he withdrew the funds but

testified that he needed to in order to pay attorney’s fees due to Mother’s “false

allegations” against him and to pay other expenses. Father testified, however, that

he spent only $7100 to pay his attorney’s fees, and he admitted that he still had

funds from the MetLife account available to him. The circuit court was free to

disbelieve Father’s testimony that he needed to withdraw the retirement funds to

pay legal and other expenses, and we must defer to its decision to do so. Id.

      As for Father’s contention that the court valued the MBS account

incorrectly, we note that he did not present any independent evidence at trial

regarding the value of this account. The only evidence he offered was his

statement of marital and non-marital property and liabilities, which he completed

                                          8
more than nine months before trial and which valued the MBS account at $4313.

The court was free to disbelieve Father’s evidence, and we must defer to its

decision to do so. Id. Point V is denied.

                                    CONCLUSION

      Father’s appeal of the contempt judgment is dismissed. The dissolution

judgment is affirmed.


                                                ____________________________________
                                                LISA WHITE HARDWICK, JUDGE


ALL CONCUR.




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