                                              In the
                            Missouri Court of Appeals
                                      Western District

                                                  
JENNIFER L. JOYNER,                               
                                                     WD77575
                   Appellant,                        OPINION FILED:
v.                                                
                                                     March 3, 2015
CHRISTOPHER E. JOYNER,                            
                                                  
                  Respondent.                     
                                                  
                                                  


                     Appeal from the Circuit Court of Cole County, Missouri
                             The Honorable Patricia S. Joyce, Judge

     Before Division Three: Victor C. Howard, P.J., James Edward Welsh, and Gary D. Witt, JJ.


          Jennifer Joyner (Wife) appeals the circuit court's judgment dissolving her marriage to

Christopher Joyner (Husband). Wife contends that the circuit court erred in its division of the

marital property and in its award of maintenance. We affirm the circuit court's judgment in part

and reverse in part.

                                            Background

          Husband and Wife were married on May 16, 2006. No children were born during the

marriage. In July 2013, after seven years of marriage, Wife filed a petition for dissolution. The

circuit court held a hearing on the matter in January 2014, at which the parties presented the

following evidence.
       Husband is employed by the Jefferson City Police Department as a police officer. He

began that employment in November 2005, about six months prior to the couple's marriage.

During the marriage, Wife first worked at a retail furniture business and later was employed as

an independent insurance agent. In August 2010, Wife was diagnosed with anxiety disorder,

chronic fatigue syndrome, and fibromyalgia. Shortly thereafter, Wife quit selling insurance and

began working part time at her brother's business. At the time of trial, Wife was no longer

working for her brother and had not worked full time for two to three years. Wife claimed that

she was unable to work due to her health problems. She stated that her application for disability

benefits was pending with the Social Security Administration. Wife introduced the deposition

testimony of George W. Carr, M.D., who testified that Wife's various health issues would limit

her ability to hold full-time employment and that, absent substantial improvement, "she should

be considered completely and totally disabled."

       During the marriage, the couple acquired certain property including Husband's pension

benefit from the Missouri Local Government Employees Retirement Benefits ("LAGERS"), the

marital residence, approximately $4,000 in bank accounts, three motor vehicles (valued at

$17,000), and household items worth less than $6,000. The evidence at trial showed that ninety-

four percent of Husband's LAGERS pension benefit was earned during the marriage. At the time

of trial, the marital home had a mortgage of $100,000. The couple had refinanced the house in

the summer of 2013, at which time the bank valued the home at $110,000. Husband testified,

based on the opinions of two real estate agents, that the value of the property was $92,500.

       The circuit court entered its judgment and decree of dissolution on March 6, 2014. The

court adopted Husband's proposed distribution of the marital assets and liabilities as fair and

equitable. That proposed distribution included a $5,400 "asset equalization" payment from Wife

                                                  2
to Husband. The court also accepted Husband's valuation of the marital home as $92,500 and

awarded the marital home (and its $100,000 mortgage debt) to Husband. The court found that

Husband's proposal for Wife to be awarded all but $200 worth of the personal household items

and for Husband to assume the debt on the marital residence resulted in a "disparate treatment of

the assets." For that reason, the court awarded Wife a twenty-five percent share of the marital

portion of Husband's LAGERS benefits. The court accepted Husband's valuation of the

LAGERS pension as $573 a month and calculated Wife's percentage as $135 a month.1 The

court also ordered Husband (1) to pay Wife $450 a month in non-modifiable maintenance for a

period of thirty-six months, and (2) to contribute $220 per month toward Wife's health insurance

premiums until she becomes eligible for other insurance, not to exceed thirty-six months.

                                              Standard of Review

        This Court must sustain the judgment in a court-tried case 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. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). "The burden of

demonstrating error is on the party challenging the divorce decree." Hernandez v. Hernandez,

249 S.W.3d 885, 888 (Mo. App. 2008). We view the evidence and all permissible inferences in

the light most favorable to the judgment and disregard all contrary evidence and inferences.

Bridgeman v. Bridgeman, 63 S.W.3d 686, 689 (Mo. App. 2002).

                                                    Discussion

        Wife raises six points on appeal. Many of her claims pertain to the division of marital

property. "The circuit court has broad discretion in dividing property in a dissolution action, and

we will interfere . . . only if the division is so unduly weighted in favor of one party that it

        1
            Neither party offered evidence of the present cash value of the LAGERS pension.

                                                          3
amounts to an abuse of discretion." Bright v. Bright, 429 S.W.3d 517, 520 (Mo. App. 2014). We

will find an abuse of discretion only if the ruling is "clearly against the logic of the circumstances

and is so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of

careful consideration." Id. The appellant bears the burden of overcoming the presumption that

the circuit court's division of the property is correct. Id.

         Section 452.330, RSMo,2 governs the division of marital property. It provides that the

circuit court "shall set apart to each spouse such spouse's nonmarital property and shall divide the

marital property and marital debt in such proportions as the court deems just after considering all

relevant factors."3 § 452.330.1. Thus, pursuant to section 452.330.1, the division of both the

marital property and marital debts is mandatory on the part of the trial court. Jonusas v. Jonusas,

168 S.W.3d 117, 119-20, n.1 (Mo. App. 2005); Belcher v. Belcher, 106 S.W.3d 601, 604 (Mo.

App. 2003). The circuit court has "great flexibility and far-reaching power in dividing the

marital property." Bright, 429 S.W.3d at 520. While the statute requires a fair and equitable

division, it does not mandate an equal division. See id.

                                        Division of LAGERS Pension

         In Point I, Wife contends that the circuit court erred as a matter of law in awarding her a

portion of Husband's monthly LAGERS retirement benefit because, pursuant to section 70.695,

such benefits are specifically "unassignable." As a result, Wife argues, the circuit court erred in



         2
        Statutory references are to the Revised Statutes of Missouri (RSMo) 2000, as updated by the 2013
Cumulative Supplement.
         3
          The factors listed are: "(1) The economic circumstances of each spouse at the time [of the property
division]; (2) The contribution of each spouse to the acquisition of the marital property . . . ; (3) The value of the
nonmarital property set apart to each spouse; (4) The conduct of the parties during the marriage; and (5) Custodial
arrangements for minor children." § 452.330.1. The listed factors are not exhaustive, however. Bright, 429 S.W.3d
at 520.

                                                          4
its overall division of property and the maintenance award "because they relied in part on the

assumption that [Wife] was to receive $135 per month of [Husband's] LAGERS benefits."

        There is no dispute that retirement benefits are marital property subject to division.

Lagermann v. Lagermann, 109 S.W.3d 239, 243 (Mo. App. 2003). Typically, when a

dissolution decree delineates a former spouse's right to receive a portion of a retirement plan as

marital property, the court will enter a Qualified Domestic Relations Order ("QDRO"). See Seal

v. Raw, 954 S.W.2d 681, 685 (Mo. App. 1997) (citing 29 U.S.C. § 1056(d)(3)). "To alienate or

assign Employee Retirement Income Security Act (ERISA) retirement benefits when dividing

marital property, a court must enter a QDRO[.]" In re Marriage of Green, 341 S.W.3d 169, 174

(Mo. App. 2011) (citing 29 U.S.C. §§ 1056(d)(1), (3)(A) (2000)). "A QDRO 'creates or

recognizes the existence of an alternate payee's right to . . . receive all or a portion of the benefits

payable with respect to a participant under a [pension] plan [.]'" Seal, 954 S.W.2d at 683

(quoting 29 U.S.C. § 1056(d)(3)(B)). A QDRO allows a court "to enforce a nonplan participant's

right to . . . marital property rights previously granted by any judgment, decree, or order."

Shelton v. Shelton, 201 S.W.3d 576, 580 (Mo. App. 2006) (citations omitted).

        Here, the circuit court made no provision for a QDRO. Presumably, this is because a

decree relating to the division of a LAGERS retirement plan will not satisfy ERISA requirements

to be designated a "qualified" domestic relations order.4 At trial, the court informed the parties

that LAGERS will not honor a QDRO. Husband's attorney was fully aware of that fact; Wife's




        4
          To satisfy federal requirements for a QDRO, the court's domestic relations order must be "qualified."
Green, 341 S.W.3d at 175. "Qualification" is "a specific procedure for federal recognition of state property in
ERISA plans." Id. The plan administrator determines whether the order satisfies ERISA's requirements for it to be
"qualified." Id. (citing 29 U.S.C. § 1056(d)(3)(G)(i)).


                                                        5
attorney was not.5 On direct examination, Husband's attorney asked Husband:

        Q. So -- And you recognize -- I mean, we've discussed the fact that LAGERS
        does not honor a QDRO.

        A. Yes.

        Q. So if the Court does award her 25 percent of your retirement, you would pay
        her $137.50 [sic] at that time; is that correct?

        A. Correct.

As noted, the circuit court agreed with Husband's position on this issue and ordered that: "[Wife]

is awarded $135 of the monthly retirement benefit that [Husband] has accrued through LAGERS,

during the marriage, to be received by [Wife] when and if [Husband] draws retirement from the

LAGERS account[.]"

        On appeal, Wife relies on Smith v. Missouri Local Government Employees Retirement

System, 235 S.W.3d 578 (Mo. App. 2007), to argue that the circuit court's order that a portion of

Husband's LAGERS benefits be paid to her "when and if [Husband] draws from this retirement"

is "irregular and void" because it violates section 70.695. Section 70.695 provides:

        The right of a person to an allowance, to the return of accumulated contributions,
        the allowance itself, any allowance option, and any other right accrued or
        accruing under the provisions of [the statutes pertaining to LAGERS], and all
        moneys belonging to the system shall not be subject to execution, garnishment,
        attachment, the operation of bankruptcy or insolvency laws, or to any other
        process of law whatsoever, and shall be unassignable, [with certain exceptions].

Among the exceptions is a provision pertaining to "the support and maintenance of children."

§70.695(2). There is no corresponding exception for a spouse. See id.

        5
          The parties point to no statute or regulation explicitly stating that LAGERS will not honor a QDRO (and
we find none), but we do find support for the proposition in Keith S. Bozarth, QDROs and Public Pensions in
Missouri, 51 J. MO. B. 149, 149 (1995) ("Governmental [pension] plans are generally exempted from the provisions
of ERISA, and therefore are not required by ERISA to recognize QDROs." (citing I.R.C. § 1003(b)(1)); and in
James P. Rosenbloom, Pensions and Deferred Compensation, II MISSOURI FAMILY LAW, §16.7 and §16.32
(MOBAR 7th ed. 2012) (stating that "plans of state and local governments are not considered qualified plans" and
that "most plans of state and local governments are not directly divisible by court order").

                                                        6
       In Smith, the parties had agreed that the wife would relinquish any marital interest in the

husband's LAGERS pension and husband would pay wife a monthly payment of non-modifiable

maintenance. 235 S.W.3d at 580. When husband stopped paying maintenance, the circuit court

granted wife's application for income withholding from the LAGERS pension. Id. LAGERS

refused to comply with the withholding notice, and wife filed a motion to compel compliance.

Id. The circuit court ultimately granted LAGERS' motion to dismiss. Id. On appeal, LAGERS

argued that section 70.695 "expressly provides that benefits paid to [LAGERS] members cannot

be levied upon to satisfy other judgments, except in the case of child support obligations." Id. at

581. This Court found that the conflict between section 452.140, under which no assets are

exempt from execution for spousal maintenance, and section 70.695, which shields LAGERS

from any execution other than for child support, could not be harmonized. Id. at 582. Thus,

because the more specific provision must take precedence, we concluded that section 70.695

"prevails and precludes any execution or income withholding for spousal maintenance." Id.

       While retirement benefits under the LAGERS pension plan are not assignable, they are,

nevertheless, "marital property." See Lagermann, 109 S.W.3d at 243; § 452.330.2 (defining

"marital property" as "all property acquired by either spouse subsequent to the marriage"); see

also Hilligardt-Bacich v. Bacich, 174 S.W.3d 11, 14-15 (Mo. App. 2005) (where husband was

awarded the entire LAGERS pension, the court remanded for the lower court to make specific

findings as to marital and non-marital portions of the pension in order to determine whether the

overall property division was just); Jarvis v. Jarvis, 131 S.W.3d 894, 899 (Mo. App. 2004)

(where husband was awarded the entire LAGERS pension, wife contested the court's valuation

of the marital portion, arguing that it rendered the overall property division inequitable).

Because LAGERS benefits are marital property, the circuit court must factor them into its

                                                  7
division of property in a dissolution action. Wife argues, however, that the division of LAGERS

benefits in this case conflicted with Missouri law, in that, under section 70.695, Wife cannot

legally compel payment of her portion of that marital property, thereby making the overall

division of property and maintenance inequitable and unconscionable.

        We agree. One of the goals of the 1973 Dissolution of Marriage Act was to "eliminate

any carryover of the animosity which brought about the severance of marriage by terminating,

without recourse to further litigation, all unity of possession, as well as unity of title, between the

spouses when consummating a 'just' division of 'marital property.'" In re Wax, 63 S.W.3d 668,

671 (Mo. App. 2001). As explained in In re Marriage of Accurso, section 452.330 "seeks to

effectively minimize the necessity for recourse to further litigation to completely sever all

relations between the parties." 234 S.W.3d 556, 557 (Mo. App. 2007).6 In order to effect that

goal, our courts have held that "a division of 'marital property' which stops short of severing the

relationship attached to the common ownership of property 'should be reserved for the unusual

situation where the economics involved call for such a solution.'" Wax, 63 S.W.3d at 671

(quoting Corder v. Corder, 546 S.W.2d 798, 804-05 (Mo. App. 1977)); see also Whaley v.

Whaley, 805 S.W.2d 681, 682 (Mo. App. 1990).

        The most common scenario in which "common ownership" problems arise is in the

division of the marital home. See, e.g., Whaley, 805 S.W.2d at 681-82; Henderson v. Henderson,

746 S.W.2d 99, 100 (Mo. App. 1988); In re Marriage of Pine, 625 S.W.2d 942, 946 (Mo. App.

1981). This Court explained, in Pine: "Our cases have consistently held that[,] unless there is


        6
         In Accurso, where the circuit court awarded husband his law practice and wife the building in which he
operated his practice, the appellate court found no evidence that necessitated avoidance of the goal to eliminate
continuing animosity between the parties by terminating all unity of possession and remanded for the lower court to
determine whether the property could be divided to avoid the landlord-tenant relationship. 234 S.W.3d at 557-58.

                                                         8
evidence which necessitates a continuation of a tenancy in common[,] real estate involved in a

divorce proceeding should be divided at the time of the dissolution." 625 S.W.2d at 946. Absent

unique factors, such as an unusual financial situation or the need for one spouse to occupy the

residence until minor children's emancipation, it is error for the circuit court to leave parties as

tenants in common in the marital home. See Whaley, 805 S.W.2d at 682.7

         Our courts have frequently reversed dissolution cases where the trial court's division of

the marital residence left the parties as tenants in common with no evidence of any unique

factors. See, e.g., id.; Henderson, 746 S.W.2d at 100-01; Pine, 625 S.W.2d at 946. This is

because such an outcome contravenes the goal to minimize continuing animosity "by terminating

. . . all unity of possession, as well as unity of title, between the spouses." See Wax, 63 S.W.3d at

671. Similarly, here, the circuit court's contingent deferred order that Husband pay Wife a

portion of his retirement pension, when and if he receives it at some point in the future, clearly

violates that goal and the legislative intent behind the Dissolution of Marriage Act.

         Even where unique economic factors exist, however, the judgment still must be

sufficiently definite and final so as to minimize the need for future court intervention. In Kelly v.

Kelly, 340 S.W.3d 673, 677 (Mo. App. 2011), for example, the circuit court ordered the sale of

the marital home but, due to the poor economic conditions in the real estate market, included a

provision that specified an initial listing price and a schedule for reducing that listing price if

efforts to sell the home are unsuccessful. The husband was allowed to remain in the home and

pay the mortgage until sold, but, in the event of his default on the mortgage, he had to pay wife

         7
          For an example of a case where such unique factors were found, see Colabianchi v. Colabianchi, 646
S.W.2d 61 (Mo. banc 1983) (upholding a division of property that gave wife right to live in the family home for six
years, until she remarried, or until all of the minor children left home; upon the sale of the house, the parties were to
share in distribution of proceeds equally; until then, husband was to pay one-third of the mortgage, taxes and
insurance, and three-fourths of cost of maintenance).

                                                            9
$15,000. Id. at 677. This Court found the schedule to gradually lower the listing price to be "a

practical approach . . . in the current economic climate," but noted that the judgment fails to

specify any date certain by which the home must be sold. Id. We explained that, "in order to be

sufficiently definite and minimize the need for future court intervention," and given the lack of

incentive for the wife to facilitate a sale, the judgment must be reversed and remanded for the

court to designate a time period for the final sale of the home. Id. at 677-78; see also Thomas v.

Thomas, 76 S.W.3d 295, 303-04 (Mo. App. 2002) (where decree "set no time limit for the sale of

the house" and gave wife "no incentive to cooperate in any sale," remanded for decree to be

modified to specify a time period for the home to be sold); Bussen v. Bussen, 273 S.W.3d 90, 91-

92 (Mo. App. 2008) (where decree provided only that the marital home "shall be sold" and the

proceeds equally divided, held that the decree must be reversed and remanded for circuit court to

"designate a time period for sale").

       Under section 452.330.1, in a proceeding for dissolution of marriage, the division of both

the marital property and marital debts is mandatory on the part of the trial court. Jonusas, 168

S.W.3d at 119-20, n.1; Belcher, 106 S.W.3d at 604. After making findings as to whether each

asset is marital or non-marital property, the court then must set apart to each spouse his or her

non-marital property and "divide the marital property and debt as it deems just." Jonusas, 168

S.W.3d at 119; § 452.330.1. In addition, "[t]he trial court must make a distribution of marital

property that is definite and capable of enforcement." Gillette v. Gillette, 416 S.W.3d 354, 356

(Mo. App. 2013) (quoting Jonusas, 168 S.W.3d at 119). Absent such a definite and enforceable

order, "this Court cannot adequately determine whether the division of property is just." Id.; see

also Hird v. Hird, 872 S.W.2d 605, 606 (Mo. App. 1994) (where circuit court could not

determine which party possessed a sum of cash and ordered that "whoever has the money must

                                                 10
pay one-half of it to the other party," held that because the distribution of marital property was

not "definite and capable of enforcement," the property "remains undivided and undisposed" and

remanded for the lower court to determine who has the cash and then to divide it justly).

        In this case, the court's order that Wife shall receive her portion of Husband's monthly

LAGERS retirement benefit "when and if [Husband] draws retirement from the LAGERS

account" does not satisfy the court's obligation to equitably divide all of the couple's marital

property and debts in a manner that is definite and capable of enforcement.8 As stated, a QDRO

allows a court to alienate or assign a portion of a pension to an alternate payee and to enforce its

order granting a former spouse the right to receive a portion of a retirement plan as marital

property. See Green, 341 S.W.3d at 174; Shelton, 201 S.W.3d at 580. Here, however, the

provisions in the judgment did not effectuate a division of Husband's LAGERS pension and

cannot be enforced via a QDRO. Accordingly, the portion of the judgment related to marital

property is neither definite (in that it cannot be viewed as having divided all of the marital

property) nor capable of enforcement, and it is insufficient to allow this Court to review the

fairness of the distribution because of the speculative nature of Wife's future receipt of pension

proceeds from Husband.

        Moreover, because the court's order is not subject to a QDRO, the division of property

would necessarily rely on Husband to pay Wife when and if he begins to receive his pension.

Even if this "deferred distribution" is considered on the order of a division of marital property in

the form of an award of future, contingent maintenance (as was the case in Smith, supra), such a

disposition is wrong on two counts. First, it is improper to use maintenance as a means of

        8
         We note that, under the LAGERS statutes and regulations, Husband could elect to receive a lump-sum
cash payout in lieu of a monthly benefit. § 70.660; 16 C.S.R. 20-2.056. It is unclear whether the circuit court
considered how such an election by Husband would impact its allocation of the LAGERS pension in this case.

                                                        11
compensating a spouse for an interest in marital property. See Fisher v. Fisher, 278 S.W.3d 732,

734 (Mo. App. 2009); Booher v. Booher, 125 S.W.3d 354, 357 (Mo. App. 2004). Second, a

maintenance award cannot be based on speculation as to future conditions of the parties. See,

e.g., Sullins v. Sullins, 417 S.W.3d 878, 886 (Mo. App. 2014); Angel v. Angel, 356 S.W.3d 357,

364 (Mo. App. 2011).

        In sum, we conclude that the circuit court erred in its deferred allocation of a portion of

the LAGERS pension benefit to Wife, because it fails to satisfy the circuit court's obligation

under section 452.330 to equitably divide all of the couple's marital property and debts in a

manner that is definite and capable of enforcement. Moreover, the circuit court may not order a

deferred distribution of marital property "if and when" it is received to be paid in the form of

future, contingent maintenance. Although we find that the trial court erred when it failed to

divide the marital portion of Husband's pension, we are cognizant that the court was using the

only information presented to the court by the parties. By presenting evidence only of the

monthly value of the LAGERS pension plan, and not of the total present value of that asset, the

parties failed to supply the circuit court with sufficient evidence for it to properly factor that asset

into the overall division of property. On remand, the circuit court may wish to receive evidence

of the present total value of that asset in order to implement a "just division" of the marital

assets. As explained in Bozarth, even where a plan provides for a "division of benefits order"

(the governmental equivalent of a QDRO, see, e.g., § 104.312 applicable to Missouri state

employees), "[n]othing prevents the parties to a dissolution from performing a present value

calculation and allocating other property to compensate for that value" to "avoid the shared risk

which results from a division of benefits order." 51 J. Mo. B. at 150-51. If the parties are

unwilling to present evidence of the present cash value of the pension, the court may appoint its

                                                  12
own "expert" witness or master to value the asset and offer testimony or report to that effect.

The costs inherent in such an undertaking could then be apportioned to the parties as the court

sees fit. See Rule 68.01; Marriage of Gardner, 973 S.W.2d 116, 120 (Mo. App. 1998).

       Accordingly, we reverse the circuit court's award of a portion of the LAGERS pension to

Wife, and we remand with instructions to reallocate the overall division of property after setting

aside the pension to Husband.

                                   Remaining Points on Appeal

       In Point IV, Wife contends that the circuit court erred, as a matter of law, in refusing to

hear any testimony as to Husband's conduct during the marriage. Among the factors that the

circuit court may take into consideration both when dividing marital property and in awarding

maintenance is "[t]he conduct of the parties during the marriage." §§ 452.330.1(4) and

452.335.2(9); Lagermann, 109 S.W.3d at 242-43. At trial, when Wife attempted to introduce

evidence of Husband's misconduct, Husband's counsel objected on the basis that the issue had

not been pleaded. The circuit court sustained the objection. The court also sustained Husband's

objection to Wife's request to amend the pleadings.

       "The trial court enjoys considerable discretion in ruling on the admission or exclusion of

evidence; thus, we will not reverse the trial court's ruling excluding evidence unless the ruling

constituted an abuse of that discretion." Educap, Inc. v. Smith, 362 S.W.3d 451, 455 (Mo. App.

2012). The circuit court also is afforded great discretion in determining whether to permit

amendment of the pleadings under Rule 55.33(b). Midland Prop. Partners, LLC v. Watkins, 416

S.W.3d 805, 816 (Mo. App. 2013). We will not disturb the court's decision on appeal absent an

"obvious and palpable" abuse of discretion. Id. We presume that the circuit court's discretionary

rulings are correct. Anglim v. Mo. Pacific R.R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992).

                                                 13
Here, the circuit court refused to allow evidence regarding Husband's misconduct during the

marriage because the issue was not included in the pleadings, and, thus, Husband was not put on

notice that this was something he would have to defend against at trial. Wife fails to demonstrate

that the circuit court abused its discretion in so ruling. Point IV is denied.

       In Point II, Wife argues that the circuit court erred in assigning a value of $92,500 to the

marital home because that valuation was not supported by substantial evidence and is against the

weight of the evidence. The circuit court has broad discretion to value property in a dissolution

action. Torrey v. Torrey, 333 S.W.3d 34, 36 (Mo. App. 2010). The circuit court's decision on that

issue will not be disturbed absent an abuse of discretion. Id. "It is well settled that the owner of

property is competent to testify in a dissolution proceeding as to its value." Jarvis, 131 S.W.3d

at 900. Here, Husband testified that he valued the property at $92,500 after contacting two

realtors who told him, based on their review of the house and comparables, that the property

could be sold for between $90,000 and $95,000. Wife initially valued the house at $100,000 but

testified at trial that it had been valued at $110,000 when they refinanced some months earlier.

Neither party indicated that the property had been appraised or presented an appraisal to the

court. The circuit court is "free to accept or reject all, part, or none of the testimony of a

witness," and, thus, the court was free to accept Husband's testimony concerning the present

value of the property. See Krost v. Krost, 133 S.W.3d 117, 119 (Mo. App. 2004).

       Wife fails to persuade us that the circuit court abused its discretion in accepting

Husband's valuation; nor does she show that the valuation was not supported by substantial

evidence. Nevertheless, we are remanding for the circuit court to reconsider the entire property

division and maintenance scheme. We advise the circuit court to note that, despite the general

rule that the proper date for valuation of marital property is the date of trial, "where the division

                                                  14
of property is not reasonably proximate to the time of trial, the valuation date should be the date

of the division of the property." Wright v. Wright, 1 S.W.3d 52, 57 (Mo. App. 1999). Thus, on

remand, the court may wish to receive evidence as to the current value of all the marital property.

        As to Wife's remaining points, because we are remanding for the court to reconsider its

rulings as to the overall division of property and the maintenance provisions, we need not

address Point III, which contests the ordered asset equalization payment, or the arguments in

Points V and VI as to the duration and amount of maintenance. These issues will necessarily be

a part of the court's recalculation as to the proper equitable distribution of property.

                                              Conclusion

        Given the legislature's direction that the dissolution court divide the marital property

equitably and completely at the time of the judgment, and absent any extenuating circumstances

foreclosing that directive, the trial court erred in failing to fairly and finally divide the property

as of the entry of the judgment herein. The failure of the parties herein to provide the present

cash value of the LAGERS pension cannot be allowed to frustrate the goal of the legislation or

the duty of the court to make a full and final distribution of their marital property in the court's

judgment. If necessary, the court can direct the parties to acquire the necessary information or do

the necessary at the parties' expense to acquire the information required for a full and final

distribution. The judgment is reversed and remanded for further proceedings in accordance with

this opinion.


                                                        /s/ JAMES EDWARD WELSH
                                                        James Edward Welsh, Judge


All concur.


                                                   15
