CHARLES HENRY STROH,                          )
                                              )
       Petitioner-Appellant,                  )
                                              )
v.                                            )       No. SD33052
                                              )
KELLY ANN STROH,                              )       Filed: Dec. 31, 2014
                                              )
       Respondent-Respondent.                 )


          APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY

                         Honorable Sidney T. Pearson, Circuit Judge

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS

       Charles Henry Stroh ("Husband") appeals portions of the October 2013 judgment

that dissolved his marriage to Kelly Ann Stroh ("Wife"). Husband challenges the trial

court's orders concerning maintenance, property division, child support, and attorney fees.

Only Husband's claim that the trial court erred as a matter of law in calculating the presumed

child support amount has merit. We therefore reverse the judgment as to child support. In

all other respects the judgment is affirmed, and the trial court is directed to enter an amended

judgment that awards child support in an amount it considers just and appropriate after first

calculating the presumed child support amount by using the correct monthly figures for

Husband's gross income and the maintenance awarded to Wife.




                                                  1
                               Applicable Principles of Review

       "[T]he trial court's decision in a court-tried case is presumed correct, and the

appellant has the burden of showing error." McAllister v. McAllister, 101 S.W.3d 287, 291

(Mo. App. E.D. 2003). We must affirm the judgment in a dissolution case "if there is

substantial evidence to support it, it is not against the weight of the evidence, and it neither

erroneously declares nor erroneously applies the law." In re Marriage of Hillis, 313

S.W.3d 643, 644 (Mo. banc 2010). We "defer to the factfinder's determinations of

credibility, viewing the evidence and permissible inferences therefrom in the light most

favorable to the decree, disregarding all contrary evidence and inferences." Mehra v.

Mehra, 819 S.W.2d 351, 353 (Mo. banc 1991). "A trial court is free to believe or disbelieve

all, part, or none of the testimony of any witness." Short v. Short, 356 S.W.3d 235, 240

(Mo. App. E.D. 2011). "When no express finding of fact is made on an issue, we consider

the issue to have been resolved in accordance with the result." In re Marriage of Holden,

81 S.W.3d 217, 226-27 (Mo. App. S.D. 2002). While the classification of property as either

"marital or non-marital is a question of law we review de novo[,]" Short, 356 S.W.3d at

243, we defer to the trial court's determination of the facts that underlie such a classification.

See Glenn v. Glenn, 345 S.W.3d 320, 326 (Mo. App. S.D. 2011) (trial court has discretion

to determine witness credibility for purposes of classifying property as marital and non-

marital).

                             Facts and Procedural Background

       The case was tried in a single day in May 2013, and the parties were the only

witnesses. Each party also offered numerous exhibits. Based upon the index of exhibits

included in the transcript, and references to exhibits made during trial, the admitted exhibits




                                                2
appear to have included bank documents, investment account documents, rental property

records, tax returns, life insurance documents, Wife's "Amended Statement of Income and

Expenses," Wife's "amended statement of property[,]" and a list of the hours worked by

Wife's counsel. Despite the prominent role that some of the admitted exhibits presumably

played in influencing the trial court's decisions, Husband has neither deposited nor filed

them with this court. "Rule 81.12(e) specifically mandates that '[a]ppellant is responsible

for depositing all exhibits that are necessary for the determination of any point relied on.'

Where the record on appeal contains evidentiary omissions, we presume they support the

trial court's decision." Angel v. Angel, 356 S.W.3d 357, 360 n.2 (Mo. App. W.D. 2011).1

        We now turn to the testimonial evidence as viewed in the light most favorable to the

judgment. At the time of trial, Husband was 72 years old, and Wife was 45 years old. The

parties began living together in 1989, when Husband was 48 years old and Wife was 20

years old. By sometime in 1991, Wife had divorced her former spouse. Two children were

born to Husband and Wife, a daughter in 1996, and a son in 1999. Husband divorced his

former spouse in 1998, and the parties eventually married on June 10, 2006.

        The parties separated in February 2011, and Husband filed his petition for

dissolution three months later. In June 2011, Wife filed a counter-petition that sought,

among other things, retroactive maintenance.

        Husband had "been buying and selling real estate in St. Louis" for "[o]ver forty

years." None of the properties Husband had purchased were encumbered by a mortgage,

and Husband received rental income from "a number of" them. Husband and Wife filed

1
  Wife's appendix includes five documents purported to be copies of some of her admitted exhibits, in addition
to one new item, a proposed Form 14. Items contained in an appendix, but which are not in the legal file or
deposited with the appellate court, are not considered on appeal. U.S. Bank v. Lewis, 326 S.W.3d 491, 496
(Mo. App. S.D. 2010). Rule references are to Missouri Court Rules (2014); statutory references are to RSMo
2000.


                                                      3
separate tax returns after they married, and Husband acknowledged that his tax returns did

not "report everything" he made. Husband admitted that he sometimes kept cash that was

paid in rent and did not deposit it into a bank account. Husband also received "close to a

thousand" dollars per month from Social Security. Husband received an additional $1,040

per month from Social Security in the form of a benefit for the children.

       From 1989 until their separation in 2011, Husband supported Wife financially, and

he told her that he would take care of her financial needs. Wife had no post-high school

education. Wife did "the majority of the cooking and cleaning and laundry of the

house[hold.]" Wife took care of the children after they were born, and Husband told her that

he wanted her to stay at home to care for them. It was also difficult for Wife to keep a

regular job or attend college because the family went "to Florida three months out of every

year right after Christmas[.]" Wife assisted Husband with his real estate business by finding

properties to purchase, placing advertisements and listings on properties, taking deeds to the

applicable courthouses for filing, moving money between accounts, helping Husband clean

properties, doing bookkeeping, and typing various documents.

       In 2006 (after the children were both in school), Wife started a silk screening

business. That business closed after the parties separated and Husband stopped helping the

business financially during slow months. Wife tried to revive the business in 2013, but "[i]t

was just too difficult to do on [her] own." She had earned about $1,000 from silk-screening

work in 2013 by the time of trial. Wife also started a business that involved selling and

delivering trout and produce in St. Louis. Her net income from this business varied from

$600 to about $1,000 per month. After looking at the numbers from the year before trial,

Wife was not sure that this business could succeed.




                                              4
          Wife testified that her monthly living expenses were $5,627, which reflected a lesser

lifestyle than she had enjoyed while living with Husband. Wife could not meet her financial

needs without assistance, she was behind on some payments, she had relied on "friends and

family" for loans, she was receiving "food stamps[,]" and she had sold some vehicles for a

total of $5,100 to pay bills after Husband stopped helping her financially. In February 2013,

Wife and the children were living in the family home, but Wife could not afford to purchase

propane to heat the house. Electric service to the house "was scheduled to be shut off, [and

she] was [also] out of firewood." Wife believed that if she left the house, Husband "would

have the electric on and the kids would be warm." Wife moved out, and Husband moved

back in. The children remained in the home, and Husband made sure that the house was

heated.

          Husband testified that there were two separate accounts at a single financial

institution ("Investment Account 1" and "Investment Account 2," collectively "Investment

Accounts") that were in the name of both Husband and Wife as joint tenants with right of

survivorship. Husband testified that Exhibit 3 showed a balance in Investment Account 1 of

$162,143.36 in "February[.]" He stated that Exhibit 4 showed a balance in Investment

Account 2 of $28,987.58, but he did not specify a date for that balance.

          A bank account held in the name of a trust created for Husband ("Bank Account 1")

held income Husband received "from real estate and [S]ocial [S]ecurity." Another account

at a different bank ("Bank Account 2") was in Husband's name, and it included insurance

proceeds from a fire at one of the rental properties. We will refer collectively to these two

accounts as "Bank Accounts." Wife's name had been on both accounts at one time, and

Husband agreed that both had been used to pay marital expenses. Wife acknowledged that




                                                 5
she did not directly contribute any money to Bank Accounts. Husband agreed that Exhibit 1

reflected a statement from November 2012 for Bank Account 1, and he stated that Exhibit 2

was his most recent bank statement for Bank Account 2.

       Husband obtained two life insurance policies on his life that had accrued cash

surrender values ("Life Policies"). One policy was taken out in 1997; the second policy was

issued in 1975. Husband also had a life insurance policy on Wife's life, but he had

surrendered that policy in 2012 in exchange for $5,500. Husband paid "the premiums for

these life insurance policies from the joint account" both "[b]efore and after the marriage[.]"

Husband acknowledged that he "suffered from memory loss issues[.]" He also stated, "I'm

pretty truthful, but I've been known to lie."

       Wife had paid $5,600 toward her legal expenses, and she still owed $32,990 to her

attorney through the end of trial. Wife requested a retroactive award of maintenance of

$3,000 per month, and she asked that Husband be ordered to pay the remaining balance of

her attorney fees.

       The dissolution judgment was entered in October 2013. It incorporated, among other

exhibits, a "Form 14" ("Exhibit 2"), a spreadsheet entitled "DISTRIBUTION OF MARITAL

AND NON-MARITAL PROPERTY" ("Exhibit 3"), and a handwritten list of jewelry

("Exhibit 6"). The trial court found "some portions of" each party's "testimony to not be

credible[,]" and it found that "Husband's credibility is particularly in doubt with regard to his

testimony concerning property and financial issues."

       The trial court found that Husband was able to pay Wife child support in the amount

of "$1,197.00 per month for two (2) minor children, and $842.00 per month when there is

one (1) minor child remaining," and the judgment ordered Husband to pay these amounts.




                                                6
Wife was "awarded modifiable maintenance in the amount of $2,500.00 per month[.]" The

judgment ordered Husband to pay Wife retroactive maintenance of $72,500, plus

$32,990.802 to cover a portion of Wife's attorney fees. The trial court set aside property it

valued at $2,156,725 to Husband as his non-marital property and marital property the trial

court valued at $140,292.3 The judgment set aside to Wife her non-marital property valued

between $14,910 and 33,0354 and marital property the trial court valued at $398,097; the

judgment also ordered Wife to pay $46,500 in marital debt.

        The trial court found that the Investment Accounts, Life Policies, and Bank Accounts

were all marital property. The marital property awarded to Wife included "one hundred

percent of the [Investment Accounts,]" which were found to total $200,000, and the cash

surrender values of Life Policies (valued at $143,430). The trial court found, based upon

Husband's testimony, that Bank Account 1 "had an approximate value of $14,125.00 and

that [Bank Account 2] had an approximate value of $77,360.00." The judgment awarded

Bank Accounts to Husband, but it ordered Husband to "pay to Wife the sum of $45,742.00

as and for her one-half of the value of [Bank Accounts]." Other portions of the judgment

will be cited as we analyze Husband's points.




2
  In its findings regarding attorney fees, the trial court referred to this amount as having an extra penny,
$32,990.81. Cf. Foraker v. Foraker, 133 S.W.3d 84, 94 (Mo. App. W.D. 2004) ("if there are inconsistencies
between the findings of fact and the judgment, the judgment prevails over the findings of fact").
3
  All of the real estate (19 parcels with a combined value of $2,145,160) was set aside to Husband as his non-
marital property.
4
  The range results from the fact that the judgment awarded Husband and Wife jewelry as their respective non-
marital property in its Exhibit 3. But Wife was also awarded jewelry shown on Exhibit 6 having a different
total value as her separate, non-marital property. We do not need to address the inconsistency between these
exhibits as the value of Wife's non-marital jewelry is not addressed in Husband's brief.


                                                      7
                                                  Analysis

                                          Point I – Maintenance

         Husband's first point contends: (1) the trial court erred in awarding Wife $2,500 per

month in maintenance because there was no evidence that Wife could not support herself by

appropriate employment and the "property set aside to" her; and (2) the trial court abused its

discretion in awarding Wife maintenance because she "is able to hold gainful employment

and received $389,172.00 in cash from [Husband] under the [judgment]."5

         "Maintenance payments must be limited to the needs of the party requesting

support." Nichols v. Nichols, 14 S.W.3d 630, 637 (Mo. App. E.D. 2000). "Before

maintenance may be awarded, a trial court must find that the spouse seeking such an award

(1) lacks sufficient property, including marital property granted to him, to provide for his

reasonable needs; and (2) is unable to support himself through appropriate employment."

Creech v. Creech, 992 S.W.2d 226, 230 (Mo. App. E.D. 1999); see also section 452.335.1.

Here, the trial court concluded that Wife lacked "sufficient property, including marital

property apportioned to her, to provide for her reasonable needs and is not able to support

herself through appropriate employment[.]"

         Husband's point addresses two statutory factors a trial court must consider when

addressing a claim for maintenance: "[t]he financial resources of the party seeking



5
  In the argument portion of his brief, Husband also claims the trial court "erred in imputing $11,000.00 per
month income to [Husband] for purposes of maintenance[.]" Wife correctly points out that a trial court's
imputation of income based on a voluntarily reduction of income is different from finding that a party's income
level is actually higher than that party has reported. Cf. Ricklefs v. Ricklefs, 39 S.W.3d 865, 874-75 (Mo. App.
W.D. 2001) (discussing in the context of child support that "'under reporting income'" is not the same thing "as
being" "unemployed or underemployed as a precursor to 'imputing' income"). But we cannot consider the
argument for more fundamental reasons. The claim is not asserted in Husband's point, and the judgment does
not indicate that the trial court found Husband's income to be $11,000 per month for purposes of calculating
maintenance. "Issues that are raised only in the argument part of the brief and are not contained in the point
relied on are not preserved for review." In re Marriage of Fritz, 243 S.W.3d 484, 488 (Mo. App. E.D. 2007).


                                                       8
maintenance"; and the marital and separate property of the parties. Section 452.335.2(1) and

(5).6

         "Although a spouse is not required to deplete or to consume his or her portion of

marital assets before being entitled to maintenance[,] interest income from the investment of

marital property must be considered in determining the necessity for, and amount of,

maintenance." Pearson v. Pearson, 22 S.W.3d 734, 737 (Mo. App. W.D. 2000) (citation

omitted). "A trial court has broad discretion in determining the amount and duration of a

maintenance award in a dissolution case. Maintenance awards are reviewed only for abuse

of discretion. Nevertheless, such awards cannot stand without supporting evidence."

Childers v. Childers, 26 S.W.3d 851, 854 (Mo. App. W.D. 2000) (citations omitted).

         The trial court found that Wife's needs for rent, utilities, payments on installment

contracts, personal expenses, health insurance, car loan, gas, car maintenance, personal

property tax, car insurance, and "personal expenses for the children" (totaling $5,507) were

reasonable.7 The trial court also found it "equitable under the circumstances to award Wife

maintenance" in that "Husband solely supported Wife throughout their seven (7) year



6
  Husband's argument addresses some other statutory factors: "[t]he time necessary to acquire sufficient
education or training" for "appropriate employment[,]" "the comparative earning capacity of each spouse[,]"
and "the duration of the marriage[.]" Section 452.335.2(2), (3) and (6). But error concerning specific factors
under section 452.335.2 was not alleged in the point relied on beyond Wife's ability to be gainfully employed
and make use of the property awarded to her. We therefore limit our analysis to the errors alleged in the point
relied on. Fritz, 243 S.W.3d at 488.
7
  Although "[i]t is well-settled that expenses attributable to the children are excluded from the calculation of
the recipient spouse's reasonable needs for purposes of determining maintenance[,]" Ferry v. Ferry, 327
S.W.3d 599, 602 (Mo. App. E.D. 2010), Husband's point does not allege that expenses for "the personal needs
of the children" were erroneously included in determining Wife's reasonable needs. Even if Husband had
made such a claim, excluding those expenses (leaving a balance of $4,607) would still show that Wife's
reasonable expenses exceeded her ability to support herself. Husband does argue that "[t]he [t]rial [c]ourt
should have considered the extent to which a provision for support of the minor children living with [Wife]
was included in a sum for [Wife] as custodian in determining the appropriate amount of maintenance." This
unpreserved argument would also fail. It "is an improper methodology" to consider child support in
determining an amount for maintenance. Childers, 26 S.W.3d at 857. "The court must first consider whether
maintenance will be awarded, and once the court has determined the appropriate amount thereof, then calculate
the child support to be awarded." Id.


                                                       9
marriage and has paid for almost all her living expenses[.]" Wife "lack[ed] a degree beyond

high school[,]" she "continues to care for" the children, and her efforts to support herself

after the parties separated had "been largely unsuccessful." The judgment recited business

income to Wife taken from her tax returns as "$11,922.00 in 2012, $7,265.00 in 2011[,] and

$5,007.00 in 2010." The trial court also relied on Wife's testimony "that at times her income

has been $1000.00 per month." Based on these findings, the trial court imputed income of

$1,274 per month to Wife on its Form 14 child support calculation. Cf. Nelson v. Nelson,

937 S.W.2d 753, 754-55 (Mo. App. S.D. 1997) (holding that a spouse generally has a duty

to obtain "full-time employment for purposes of support" and using the income figure used

for child support purposes as the basis for analyzing the spouse's earning capacity for

maintenance purposes).

       We defer to the trial court's credibility determinations, and we view the evidence and

the reasonable inferences that may be drawn from it in the manner most favorable to the

judgment. Mehra, 819 S.W.2d at 353. In addition to the fact that the trial court was free to

decide what testimony to believe, Short, 356 S.W.3d at 240, we also presume that the

documentary exhibits Husband failed to provide also supported the trial court's findings

regarding Wife's ability to obtain income from employment. See Angel, 356 S.W.3d at 360

n.2.

       The absence of these exhibits also affects our ability to review the trial court's

determination of what Wife might reasonably have been expected to earn from the property

awarded to her. While the trial court did not state a specific value for such potential income,

it did explicitly consider such income in deciding that Wife was entitled to an award of

maintenance, finding that Wife could not support her reasonable needs with her "property,




                                               10
including marital property apportioned to her," and her income from employment

(emphasis added). Cf. In re Marriage of Thompson, 24 S.W.3d 751, 755 (Mo. App. S.D.

2000) (in which a specific figure for investment income was not required).

        Husband's exhibits related to Bank Accounts and Investment Accounts were

admitted into evidence. We presume these exhibits would have enabled the trial court to

calculate the income Wife could reasonably have expected to earn by investing the proceeds

of these accounts, and that such income, when combined with income from employment,

would have been insufficient to meet her reasonable needs.

        Husband asserts that if a 5% return rate was applied to "a $391,000.00 [sic]

investment[,]" then Wife's "necessity for spousal maintenance" would be reduced "to

$809.00 per month." Husband argues that "Missouri [courts] consider 5% to be a modest

return on investments and where [courts] lack evidence of the rate of return on investments,

they frequently assume a 5% rate of return[,]" citing D.K.H. v. L.R.G., 102 S.W.3d 93, 104

(Mo. App. W.D. 2003).

        We do not read D.K.H. as standing for the proposition that a 5% rate of return is

always assumed when there is no evidence of a return rate, nor can we find (due to

Husband's failure to provide the exhibits admitted at trial) that the trial court was without

evidence of an appropriate rate of return in this case.8 We will not convict the trial court of


8
  In D.K.H., the court actually found that 9.1% could have been used as the rate of return on the wife's
"income-generating assets" in denying her maintenance because the wife's own expert used that figure. Id. at
103-04. D.K.H. distinguished two cases applying a 5% rate of return. Id. at 103. See Hosack v. Hosack, 973
S.W.2d 863, 871 (Mo. App. W.D. 1998) ("assets in the form of CD's" were considered and the court stated that
"CD's earn a conservative rate of interest which [the husband] concede[d] could be in the neighborhood of
5%"); and Nelson, 937 S.W.2d at 756 ("[a] modest return of 5%" was used to analyze a trial court's denial of
maintenance where no evidence of a particular rate of return was noted as being considered by the trial court).
See also Myers v. Myers, 844 S.W.2d 105, 108 (Mo. App. S.D. 1992) (a 5% rate was used in analysis by this
court where "an annual return of less than 2 percent" had been assumed by the trial court and the husband's
evidence suggested a return rate of 9%). While some decisions from around 1992 to 2002 may have accepted
5% as a moderate rate, "rates of return are not stable[.]" Breihan v. Breihan, 73 S.W.3d 771, 778 (Mo. App.


                                                      11
error by speculating in the manner Husband now suggests. Cf. Adair v. Adair, 124 S.W.3d

34, 41-42 (Mo. App. W.D. 2004) (finding no plain error in failing to consider evidence

about a rate of return not before the trial court). Father has failed to overcome the

presumption that the trial court's judgment regarding maintenance was correct. Point I is

denied.

                                         Point II – Child Support

          Husband's multifarious Point II9 asserts the trial court "should have awarded the

[S]ocial [S]ecurity benefits [on behalf of the children] to be paid to [Wife]"; "there was no

credible evidence . . . that [Husband's] income was $11,000.00 per month as stated on the

[trial] court's own Form 14[;] and the [trial] court miscalculated the Form 14" by using

$3,000 as the figure for Wife's maintenance. We will not review Husband's contention that

Social Security benefits should have been paid to Wife because his brief does not present

any argument supporting the claim. See In re Marriage of Michel, 142 S.W.3d 912, 930

(Mo. App. S.D. 2004) ("errors raised in the points relied on, which are not supported by

argument, are deemed abandoned and present nothing for appellate review"). As to the

remaining portions of the point, we do find merit in Husband's claim that the trial court erred

by using the wrong monthly figures for Husband's gross income and the maintenance

awarded to Wife as set forth in its factual findings.

          "For meaningful appellate review, the trial court is required to determine and find for

the record the presumed correct child support pursuant to Rule 88.01, utilizing [Form 14]."

E.D. 2002) (acknowledging 5% as a "recent . . . modest return" but also remanding the case to "recalculate the
reasonable expectation of investment income" where remand was also required regarding an "error in imputing
employment income"). And, a spouse "should not be required to risk assets in order to generate higher rates of
return nor should the court impute a greater amount of income based on more aggressive investments." Id.
9
  A multifarious point combines more than one allegation of error in a single point in violation of Rule
84.04(d) and it "preserves nothing for appellate review." In re Marriage of Adams, 414 S.W.3d 29, 33 (Mo.
App. S.D. 2013). Nonetheless, if "the deficiencies do not impede our disposition on the merits" it is within our
discretion to review the point ex gratia. Id. We exercise that discretion here.


                                                      12
Neal v. Neal, 941 S.W.2d 501, 504 (Mo. banc 1997). "It is presumed that the amount of

child support calculated pursuant to Form 14 and accepted by the trial court is the correct

amount to be awarded, subject to being rebutted as being 'unjust and inappropriate.'" Crews

v. Crews, 949 S.W.2d 659, 669 (Mo. App. W.D. 1997). The trial court may accept one of

the parties' Form 14 calculations, or reject both and prepare its own. McCandless-Glimcher

v. Glimcher, 73 S.W.3d 68, 73 (Mo. App. W.D. 2002).

       Here, the trial court rejected "both Form 14 calculations submitted by the [p]arties,

and substitute[d] its own calculation," which it attached to the judgment as Exhibit 2.

(Emphasis added.) As to Husband, the judgment's relevant factual findings included:

       [T]he Court finds that Husband's estimated rental income [is] $9,000.00 per
       month. Husband also receives approximately $1,000.00 per month in
       [S]ocial [S]ecurity benefits for himself. Based on the findings set forth in
       this Judgment, the Court finds that Husband's estimated monthly gross
       income [is] $10,000.00.

Despite its stated rejection of both parties' Form 14s, the relevant findings concerning Wife

included:

       Wife's Form 14 ([Wife's] Exhibit B) includes imputed income to her based on
       minimum wage of $7.35 per hour for 40 hour[s] per week. The Court finds
       Wife's proposed Form 14 ([Wife's] Exhibit B) to be reasonable and therefore
       adopts same. Wife's Form 14 includes maintenance income, as set forth and
       ordered herein, to Wife from Husband of $2,000.00 per month.

The trial court went on to find, "in accordance with [section] 453.340, and with the

calculations set forth in [Wife's Form 14,] that the reasonable amount of child support

Husband should pay to Wife is $1,197.00 per month for two (2) children, and $842.00 per

month when there is one (1) minor child remaining."

       In calculating child support, the trial court did not specifically address the fact that

Husband received an additional amount of Social Security on behalf of the children. While




                                               13
it considered Social Security payable on behalf of the children when addressing Husband's

sources of income for maintenance purposes, the trial court ultimately found that Husband's

income for maintenance purposes was $10,000 per month -- $9,000 from rental income and

$1,000 from his own Social Security benefits. The trial court's Form 14, however, stated

Husband's monthly gross income to be $11,000 instead of $10,000, and it incorrectly stated

that the maintenance paid by Husband to Wife was $3,000, not $2,500. The trial court's

Form 14, thus erroneously calculated, produced a presumed child support amount payable

by Husband of $1,197 for two children and $842 for one child -- the amounts the judgment

ordered Husband to pay.

       In reaching its $9,000 in monthly rental income for Husband, the trial court credited

Wife's estimate of Husband's rental income as set forth in her "Exhibit U," and it noted that

the estimate was also supported by Wife's exhibits V1-V5. The trial court further noted that

exhibits related to Bank Accounts 1 and 2 also reflected $4,000 to $21,000 per month in

deposits from rental income. Husband admitted that he did not report all of his income on

his tax returns and sometimes kept rent paid in cash without depositing it in the bank.

       The aforementioned constituted substantial evidence supporting the trial court's

finding that Husband's gross income was $10,000 per month. As previously discussed,

Husband has also failed to prove that the trial court's maintenance award of $2,500 per

month was erroneous. Understandably, Wife readily agrees that the trial court erred in

"inaccurately stat[ing] the amount of maintenance paid by [Husband] to [Wife]" on its Form

14 and that this mistake resulted in a "computation error" in the trial court's child support

award, arguing that a correction of the maintenance error would actually result in an increase

in Father's portion of the presumed child support amount because his relative share of the




                                               14
combined monthly income would thereby increase. This argument fails to account for the

discrepancy between the trial court's finding that Husband's gross income was $10,000 per

month and its Form 14 calculation that used a higher monthly gross income amount for

Husband of $11,000.

         Husband correctly asserts that the figures the trial court used for Husband's gross

monthly income and Wife's maintenance in its Form 14 calculation of presumed child

support are not supported by substantial evidence. Because a correctly calculated Form 14

is presumed to be the appropriate amount of child support, Husband has demonstrated that

the error was prejudicial. Cf. Nelson v. Nelson, 195 S.W.3d 502, 510 & 512 (Mo. App.

W.D. 2006) (the presumed child support amount "must be awarded" unless it is found by the

court to be "unjust or inappropriate[,]" but trial court's Form 14 was incorrect and child

support award must be reversed); see also Rule 84.13(b). The portion of Husband's second

point that challenges the trial court's award of child support is granted.

                Point III – Investment Accounts, Life Policies, and Bank Accounts

         Husband's third point claims the trial court erred in awarding Wife the Investment

Accounts, Life Policies, and one-half of Bank Accounts (collectively "these assets") because

they were his separate property pursuant to section 452.330 in that they were obtained

before the marriage and were funded exclusively by Husband. Husband argues that because

the Investments Accounts "at the time of the marriage had approximately $191,131.00 of

value . . . , the only real contribution that the Court could consider as marital, is any amounts

[sic] above $191,131.00."10 Husband argues that because Wife contributed "no marital


10
   The figure identified by Husband in his brief as the balance of the Investment Accounts "at the time of the
marriage" -- $191,131 -- was not the balance shown in June 2006; it was actually the combined balance of
Investment Account 1 (as of a February 2012 statement) and Investment Account 2 (from a date not revealed
in the record on appeal).


                                                      15
assets" to the Life Policies, they "should be set aside to him in [their] totality[;]" and as Wife

contributed "nothing" to Bank Accounts, she is "entitled to nothing" from them. We

disagree.

       "Although the division of marital assets and debts need not be equal, it must be just

and equitable." Nichols, 14 S.W.3d at 635 (footnote omitted). "The division of marital

property is left to the sound discretion of the trial court, and its decision will be upheld

unless an abuse of discretion is shown." Noland-Vance v. Vance, 321 S.W.3d 398, 423

(Mo. App. S.D. 2010). "We presume that the trial court's division of property is correct, and

the party opposing the division bears the burden of overcoming this presumption." Nelson

v. Nelson, 25 S.W.3d 511, 517 (Mo. App. W.D. 2000).

       Marital property is

       all property acquired by either spouse subsequent to the marriage except:

       (1) Property acquired by gift, bequest, devise, or descent;

       (2) Property acquired in exchange for property acquired prior to the marriage
           or in exchange for property acquired by gift, bequest, devise, or descent;

       (3) Property acquired by a spouse after a decree of legal separation;

       (4) Property excluded by valid written agreement of the parties; and

       (5) The increase in value of property acquired prior to the marriage or
           pursuant to subdivisions (1) to (4) of this subsection, unless marital assets
           including labor, have contributed to such increases and then only to the
           extent of such contributions.

Section 452.330.2.

       "Property is non-marital if one spouse owned it before the marriage and retained

separate title to it after marriage." Jinks v. Jinks, 120 S.W.3d 301, 305 (Mo. App. W.D.

2003). "Placing separate property of a spouse into the joint names of both spouses creates a




                                                16
rebuttable presumption that the property has been transmuted into marital property." Id.

"All property acquired by either spouse subsequent to the marriage . . . is presumed to be

marital property regardless of whether title is held individually or by the spouses in some

form of co-ownership[.]" Section 452.330.3.11 Finally, "[a]ny increase in the value of

separate property is marital property if marital assets or marital labor contributed to

acquiring that increase." Selby v. Selby, 149 S.W.3d 472, 484 (Mo. App. W.D. 2004).

        "The burden is on the party who claims that the property is separate to overcome the

presumption of marital property and show that it falls into one of the exceptions listed in

Section 452.330.2." Shaw v. Shaw, 413 S.W.3d 332, 337 (Mo. App. W.D. 2013). "Error in

classifying property is not necessarily prejudicial unless it materially affects the merits of the

action." Jinks, 120 S.W.3d at 306. "The mere erroneous classification of property, where

the decree is nonetheless fair, will not require a reversal." Id. Absent a contention in the

point relied on that the erroneous classification resulted in an unfair overall division of

property, the claim has been abandoned and reversal is not required. Burk v. Burk, 936

S.W.2d 144, 145-46 (Mo. App. S.D. 1996) (husband was correct that a tract of land should

have been classified as marital, but reversal was not ordered because he did not contend that

the resulting division of property was unfair); see also Glenn, 345 S.W.3d at 327 (trial court

misapplied the law in finding that no marital contributions had been made toward an

acreage, but reversal was not required where wife did not allege that the property division

was unfair, establish what percentage of the acreage was marital, nor show how the

erroneous classification impacted the overall division of property).




11
   Such a presumption may be overcome when the property is shown to be an exception to marital property
listed in section 452.330.2. Section 452.330.3.


                                                    17
         This last principle is fatal to Husband's claim. Even if we assume, arguendo, that the

trial court erred in classifying any or all of these assets as marital property, Husband's point

does not contend that the misclassification resulted in an overall division of marital property

that was inequitable. Point III is denied.

                                         Point IV – Attorney Fees

         Husband's final point claims the trial court erred by ordering Husband to pay a

portion of Wife's attorney fees because it "failed to consider" that Wife was awarded

$389,172 in "cash[,]" which could have been used to pay her attorney fees, and "it is

presumed that parties to litigation will pay their own attorney fees[.]"12

         The trial court correctly noted that it is permissible under section 452.355.1 to

require one party to pay the other's attorney fees in a dissolution action. It further found

"credible" Wife's "evidence and testimony of her inability to pay her attorneys, her limited

access to funds to pay her attorneys due to Husband's control of the parties' financial

resources, and Husband's behavior during the litigation." The trial court concluded "that

unusual circumstances exist to support deviation from the normal rule that each party bear

his own litigation costs[.]"

         Husband argues that "[a] deviation from the general rule requiring each party to pay

his or her own cost by requiring one party to pay the other party's attorney fees is not

justified absent a showing of very unusual circumstances[,]" citing Campbell v Campbell,

825 S.W.2d 319, 323 (Mo. App. W.D. 1992). In making this argument, Husband failed to

note that the western district of this court later "expressly rejected the 'very unusual

circumstances' standard in domestic relations cases brought under Chapter 452." Mobley v.

12
   The argument that follows this point also contends that the award of attorney fees was "against the weight of
the evidence[.]" Because this claim is not contained in the point relied on, we disregard it. Fritz, 243 S.W.3d
at 488.


                                                      18
Phillips, 942 S.W.2d 399, 403 (Mo. App. W.D. 1997). Moreover, our own district has

pointed out that "[t]he relevant statute [section 452.355.1] contains no requirement of

unusual circumstances." Dimmitt v. Dimmitt, 849 S.W.2d 218, 222 (Mo. App. S.D. 1993).

       Under section 452.355.1, an award of the costs of the proceeding, including attorney

fees, may be made "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[.]" See also Russell v. Russell, 210 S.W.3d 191, 199 (Mo. banc 2007). "Financial

inability of the spouse to pay attorney's fees is not a requirement for awarding attorney's

fees." Id. "[T]he fact that a spouse has the means to pay his or her attorney's fees does not

preclude an award for payment of the same." Cohen v. Cohen, 73 S.W.3d 39, 56 (Mo. App.

W.D. 2002). "[O]ne party's greater ability to pay is sufficient to support an award of

attorney's fees." Russell, 210 S.W.3d at 199.

               The trial court is afforded broad discretion in its award of attorney
       fees, and its award is presumed to be correct. Bell v. Bell, 360 S.W.3d 270,
       284 (Mo. App. 2011). This Court will reverse such an award only when a
       party demonstrates that the trial court abused its discretion. Id. To
       demonstrate such an abuse, the complaining party must show that the award
       was against the logic of the circumstances and was so arbitrary and
       unreasonable as to shock one's sense of justice.

In re Marriage of Geske, 421 S.W.3d 490, 496-97 (Mo. App. S.D. 2013). "An award of

attorney fees to a party is not an abuse of discretion merely because that party receives the

benefit of a more-than-equal share in the division of property." Adair, 124 S.W.3d at 40-41.

       Here, although it was not required to do so, the trial court expressly found that Wife

was unable to pay her remaining attorney fees, and it also considered Husband's actions

during the pendency of the litigation. From the evidence already discussed, and the

presumption that the omitted trial exhibits would have further supported the trial court's




                                                19
award, see Angel, 356 S.W.3d at 360 n.2, we cannot find that the trial court abused its

discretion in awarding $32,990.80 in attorney fees to Wife. Point IV is denied.

                                          Decision

       The award of child support in the judgment is reversed. In all other respects, the

judgment is affirmed. The matter is remanded to the trial court, which is directed to enter an

amended judgment that awards child support in an amount it considers just and appropriate

after first calculating the presumed child support amount using the correct maintenance and

income figures.


DON E. BURRELL, J. - OPINION AUTHOR

MARY W. SHEFFIELD, P.J. - CONCURS

NANCY STEFFEN RAHMEYER, J. - CONCURS




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